Alberta Court of Appeal allows child to relocate with mother to US

The Alberta Court of Appeal has allowed a child to relocate with her mother to the United States, finding that it was in the best interests of the child to be with the mother rather than with the father in Edmonton.

In Ting v. Ting, 2022 ABCA 324, Andrew Ting appealed from a judgment which permitted his child to relocate with the mother, Madison Ting, to the US. Madison was originally from South Carolina, while Andrew was from Edmonton. The trial judge ruled that the best interests of the child would be served by allowing relocation with the mother and the father would be consulted on major decisions. Andrew also would be given parenting time including visits with the child in Edmonton every two months.

Andrew challenged the trial judge’s decision and brought the matter to the Alberta Court of Appeal, arguing that the trial judge committed an error by failing to accept an expert report of a Dr. Torres, which suggested that the child’s best interests were served by remaining in Edmonton. Andrew also filed a fresh evidence application on appeal, comprised of an affidavit about the mother’s current state of employment, her continued residence with the child’s maternal grandmother, and the child’s schooling, childcare, and medical treatment.

Relocation in child’s best interests

Madison sought dismissal of the father’s appeal and fresh evidence application, asserting that the judge did not commit any error and that the father improperly wished to reargue the trial.

The appeal court ruled that the trial judge did not commit any error in concluding that relocation with the mother was in the child’s best interests. The court saw no palpable and overriding error with respect to the judge’s assessment of the expert report of Dr. Torres, which the judge did not entirely disregard. While the report raised a concern with the mother’s ability to meet the child’s needs given the state of her mental health in 2020, the judge was satisfied that the mother’s distress was caused by the “toxic state” of her relationship with the father. The judge did not find any evidence that the mother’s mental distress was long-term or chronic.

The appeal court pointed out that the trial judge also reviewed the voluminous documentary evidence and took all those materials into account in considering the weight that ought to be given to the experts’ opinions as it related to the best interests of the child. In doing so, the court did not see any error that called for appellate intervention.

Fresh evidence refused

The appeal court also refused to admit the father’s fresh evidence. The court noted that while the test for admitting fresh evidence is sufficiently flexible to recognize that it may be in the interests of justice for a court to have more context before rendering decisions that could profoundly alter the course of a child’s life, finality and order are critically important to family proceedings and factual developments that occur after trial are usually better addressed through variation procedures.

The appeal court further said that, even if the new evidence related to post-trial dealings between the parties, it could not have affected the result of the trial. It also said that this case did not present a situation where it would be in the interests of justice for the court to have “more context” before reaching a just result on appeal. Rather, “the admission of more evidence, much of which is materially contested, must yield to finality and order in the administration of justice,” said the court in dismissing the appeal.

The court further reminded the parties that “it is in the child’s best interests that the parties put their own personal and emotional issues aside and do whatever they can to learn to better collaborate in their child’s upbringing.”