Alberta Court of King’s Bench upholds arbitral award on child custody and relocation

The Alberta Court of King’s Bench has upheld an arbitrator’s decision on child custody and relocation in a recent family law case.

In Schafer v Schafer, 2023 ABKB 448, Glen Schafer and Gail Schafer separated after nine years of marriage, during which they lived primarily in and around Olds, Alberta. They have one child, now 11 years old. The parties retained an arbitrator to assist in the resolution of their disputes. They referred to the arbitrator matters involving custody, parenting, child support, spousal support, property, and costs.

After several interlocutory decisions and a lengthy hearing process, the arbitrator issued a comprehensive final award granting Gail Schafer the right to relocate to Calgary from Olds, primary parenting, and final decision-making authority, subject to a process of consultation and potential judicial review.

Glen Schafer applied for leave to appeal the award. The Alberta Court of King's Bench ultimately dismissed his application. Glen raised 17 grounds of appeal, alleging 22 errors of law. His allegations include the arguments that the arbitrator exceeded her jurisdiction, misapplied the law on a material change of circumstances, and failed to consider relevant and mandatory factors in evaluating the child's best interests.

The court noted that in determining leave to appeal from arbitral awards, the court must consider whether the appeal is on a question of law, whether the issue at stake is of sufficient importance to warrant an appeal, whether the grounds of appeal have a reasonable chance of success, and whether a successful appeal will materially impact the rights of the parties.

Arbitral jurisdiction

Glen argued that the arbitrator lacked jurisdiction to grant Gail final decision-making authority over all matters beyond education and health. He asserted that since the arbitrator was asked to change decision-making over "health and education," she was constrained to ruling on those issues.

The court noted that in the arbitration agreement, the parties expressly vested the arbitrator with jurisdiction over "parenting." The court stressed that parental decision-making is a necessary and indivisible parenting component. As a result, the question of who would make decisions over the essential facets of the child's life was entirely within the arbitrator's jurisdiction.

The court also dismissed the argument that the arbitrator's decision exceeded jurisdiction because it was not an issue of jurisdiction but rather a question of the fair exercise of jurisdiction. Furthermore, the court found that the impugned modification to the decision-making regime does not significantly alter the parties' rights to warrant an appeal. The father went from having shared decision-making authority by resorting to the arbitrator in the event of a deadlock to having full consultative rights by resorting to a court application in case of an impasse with the mother. The court denied leave to appeal on this ground, indicating that the father's complaint is the type of grievance meant to be screened out from the appellate process.

Material change in circumstance

Glen argued that the arbitrator committed an error in law by granting a mobility application where there was no material change in circumstances. He asserted that a move from Olds to Calgary is not of sufficient distance to qualify as a change in circumstances warranting an interference in the existing parenting arrangement.

The court rejected this argument, finding that it involves a mixed question of fact and law. Furthermore, the court found the father's contention that one parent moving from a rural acreage outside Olds to Calgary is per se incapable of ever constituting a material change in circumstances as a matter of law is unarguable.

Glen also argued that the arbitrator's conclusion that Gail needed to move was a palpable and overriding error. He contended that Gail did not have to move to Calgary for her job according to documentary evidence, including her employment offer, which stated, "You will work from your home office located in Olds, Alberta."

The court likewise rejected Glen's argument, finding that the arbitrator had accepted the mother's explanation of the condition of her employment. The court emphasized that disagreement over the arbitrator's belief of a witness, and her explanation of potentially inconsistent documents, is not a question of law and leave to appeal is not available on this issue.

Best interest factors

Glen argued that the arbitrator failed to consider mandatory factors on relocation. Specifically, these are the impact of the child's lessened contract with his father if the relocation is allowed and the effect of moving the child away from his rural and cultural heritage.

The court noted that to show that a question of law arises, the father would have to demonstrate that the arbitrator failed to turn her mind to relevant factors or weighed them unreasonably.

The court found that the arbitrator expressly acknowledged her obligation to consider these factors and gave significant weight to the importance of the child's bond to his father. She held that maintaining this relationship was a vital interest for the child. The court emphasized that the arbitrator's conclusion that relocation would better serve the child's interests was informed by her factual finding that the mother was more likely to facilitate the father's ongoing parenting time and parental relationship than vice versa. Accordingly, the court refused to accept the argument that the arbitrator failed to consider and weigh the decrease in the father's parenting time that relocation entailed. Furthermore, the court also noted that the arbitrator weighed the child's heritage.

The father advanced several other grounds for appeal, but the court ultimately dismissed his application for leave to appeal the arbitrator's final award.