Alberta court sets aside arbitrator’s award for failing to consider child’s Indigenous heritage

The Alberta Court of King’s Bench has ruled to set aside an arbitrator’s award in a child relocation case for failing to give proper weight to the child’s Indigenous heritage and upbringing.

In AMLC v BDC, 2023 ABKB 179, the parties were married in 2016 and separated in 2020. They have a four-year-old child together, and they share parenting responsibilities. The mother advised the father that she intends to relocate to Warren, Manitoba, with the child. An arbitrator issued an award, finding that it was not in the child's best interests to relocate to Manitoba.

The mother elevated the matter to the Alberta Court of King's Bench, arguing that the arbitrator made an error in considering the best interests factors, failed to conduct a full and sensitive inquiry of the relocation-specific consideration, and had a reasonable apprehension of bias. On the other hand, the father argued that the arbitrator made no error and properly assessed the evidence within the confines of each provision of the Divorce Act.

The Court of King's Bench ruled in favour of the mother, finding that the arbitrator made an error in assessing three best interests factors – the nature and strength of the child's relationship with each spouse, each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse, and the child's cultural, linguistic, religious and spiritual upbringing and heritage, including the child's Indigenous roots. The court said that these errors materially impacted the arbitrator's overall assessment of the factors, and accordingly, the court decided to set aside the arbitrator's award.

The nature and strength of the child's relationship with each spouse

The mother argued that the arbitrator improperly focused on her strong family attachments instead of considering the father's role in the child's upbringing. The mother argued that the arbitrator made errors in considering her sister's affidavit evidence intended to support the mother's relocation application. The arbitrator found that the evidence lacks consideration for the importance of the father's relationship with the child and his upbringing.

The court agreed that the arbitrator made an error in faulting the mother's sister's affidavit evidence for not bolstering the father. The purpose of that affidavit was to support the mother's relocation application and to provide additional context as it relates to the child's Indigenous heritage. The court also found that the arbitrator ignored that the father gave no evidence on the importance of the child's relationship with the mother. In contrast, the mother's evidence spoke of the significance of the father in the child's life.

Willingness to develop and maintain the child's relationship with the other parent

The court noted that the parenting plans of each spouse were approximately the same in terms of time spent with the other parent. However, the arbitrator found that the mother's proposed parenting time reduced the father's ability to be a "present, activity participant" in the child's life and allocated the father to the "sidelines" of the child's life. The court pointed out that the arbitrator could not reasonably make these findings without also making reciprocal conclusions that the father's proposed parenting time did the same as it relates to the mother.

The child's Indigenous upbringing and heritage

The mother gave extensive and uncontested evidence about the Red River Metis' culture, language, and heritage and how they differ from those of the Alberta Metis. The award recognized that the mother is a member of the Manitoba Metis and that she is of francophone descent, immersed in the cultural and linguistic heritage of the Metis/Francophone community.

However, the court pointed out that the award did not mention the Red River Metis and Alberta Metis are distinct, even though it was an essential and meaningful distinction to make. Instead, the court found that the arbitrator was critical of the mother for her "strong reluctance" to have the child participate in Metis activities in Alberta, leading the court to believe that the arbitrator either "forgot, ignored, or misconceived the evidence" of the distinction between the Red River Metis and Alberta Metis in a way that affected her findings.

Accordingly, the court concluded that the arbitrator made an error in her overall assessment of the best interests factors. The court ultimately ruled to set aside the arbitrator's award.