During hearing, chambers judge interrupted the mother before she could present evidence
The Alberta Court of Appeal has found that a mother who relocated with her child was deprived of procedural fairness when she was ordered to return the child before the chambers judge even heard her evidence.
In Bolan v. Bolan, 2022 ABCA 356, James and Joella Bolan were married and had a child together. The couple lived in Edmonton until they separated in March 2022. Joella moved with the child to a shelter immediately after the separation. In April, Joella brought the child with her to British Columbia, without giving a notice of the relocation to the child’s father.
Under the Alberta Divorce Act, a parent who is seeking to relocate with a child is required to provide a 60-day advance written notice to the other parent. The Alberta Court of Appeal noted that mobility applications filed in court are inherently difficult, as they inevitably mean that children face changes to their status quo and parental relationships. Parents are statutorily obligated to provide advance notice and comply with the procedure under the law that would enable relocations to be addressed in an orderly fashion.
Upon learning that Joella had moved with the child to BC, James sought an emergency hearing to have the child returned to Alberta. A virtual hearing before a chambers judge was held. Joella, who was self-represented at the hearing, requested an adjournment at the outset because, she wished to obtain a month-long adjournment so she could engage the services of counsel.
However, without expressly determining the adjournment request, the chambers judge heard submissions from the father’s counsel on the merits of the application. The judge then expressed that he was inclined to order the child returned, noting that the best interests of the child was the overarching concern and the mother’s move was a unilateral self-help remedy which was not in the child’s best interests.
Joella sought to make submissions, but the chambers judge interrupted her and repeated that he was inclined to make the order that the child be returned. He also said that Joella would have the benefit of the matrimonial home in Edmonton upon the return of the child and that she would have primary parenting while the father would have supervised parenting time. When asked by the judge if she agreed, Joella said “I heard it. I don’t really understand it.”
At the end of the hearing, the chambers judge ordered that the child be returned to Edmonton. The mother appealed the order, arguing that the judge failed to consider the best interests of the child and the history of family violence.
The appeal court observed that the mother’s adjournment request was never explicitly addressed and was essentially refused without any indication of why a limited adjournment would be inappropriate given Joella’s request for time to retain a lawyer. The court also found no evidence from the mother on the record before the chambers judge, despite the father’s affidavit clearly indicating that he was responding to affidavits filed by the mother. Joella was also not given the opportunity to make submissions on the substance of the application before the child was ordered returned to Alberta.
Considering these circumstances, the appeal court ruled in favour of Joella, finding that she was deprived of procedural fairness. The court observed that the procedure during the hearing failed to meet the standard of fairness required by the common law. As a result, Joella’s appeal was allowed and the court directed that the father’s application to have the child returned to Alberta be heard together with Joella’s intended application for permission to relocate.
