AMLC v BDC, 2023 ABKB 179

Court of King's Bench of Alberta Citation: AMLC v BDC, 2023 ABKB 179 Date: 20230328 Docket: 4801 189836 Registry: Calgary Between: AMLC Appellant - and - BDC Respondent _______________________________________________________ Reasons for Judgment o f the Honourable Justice M.H. Bourque _______________________________________________________ [ 1 ] AMLC appeals the decision of an arbitrator (the " Arbitrator "), who ruled against AMLC's application to relocate S to Manitoba. A. Background [ 2 ] AMLC and BDC began cohabiting in July 2015, married a year later, and separated in February 2020.

They have one child, S, who is four years old, and they share parenting responsibilities. On May 20, 2021, AMLC sent a relocation notice to BDC advising of her intention to relocate with S to Warren, Manitoba. BDC objected. Unable to resolve the matter, the parties appointed the Arbitrator to determine whether S would be permitted to relocate with AMLC to Manitoba. After mediation proved unsuccessful, an arbitration hearing was held on February 22, 2022, and both parties were represented by counsel.

The Arbitrator issued an award on April 4, 2022 (" Award "), in which she found that it was not in S's best interests to relocate to Manitoba. [ 3 ] The parties' arbitration agreement allows for an appeal to this Court on questions of law, mixed law and fact, and fact. As such, AMLC did not need to obtain leave to appeal the Arbitrator's decision. B. Grounds of Appeal [ 4 ] AMLC advances three grounds of appeal.

Although her brief lists the grounds differently, I will consider them in the same order as they were argued at the hearing. [ 5 ] First, AMLC submits that the Arbitrator made errors of law, mixed law and fact, and fact in considering the best interests

factors in subsection 16(3) of the Divorce Act, RSC 1985, c 3 (2nd Supp). Second, AMLC submits that the Arbitrator failed to conduct afull and sensitive inquiry of the relocation-specific considerations in

section 16.92 of the Divorce Act. I will deal with grounds 1 and 2together. [6] AMLC also submits that the Arbitrator had a reasonable apprehension of bias. Counsel for AMLC made submissions at thehearing, but AMLC’s brief was silent on the issue. [7] BDC submits that the Arbitrator made no error of law, fact or mixed law and fact in considering the best interest factors andthe relocation-specific considerations in 16.92 of the Divorce Act. He argues that the Arbitrator properly assessed the evidence within theconfines of each provision and that her decision should be affirmed. C.

Standard of Review [8] The parties agree that appellate review standards apply to this appeal: Housen v. Nikolaisen, 2002 SCC 33, paras 8, 10, and36. For questions of law, the standard of review is correctness. For questions of fact, the Arbitrator is entitled to deference and findings offact should only be overturned where the arbitrator made a palpable and overriding error. Questions of mixed law and fact involveapplying a set of facts to a legal standard or principle; therefore, the standard of review falls on a spectrum.

To the extent the error in aquestion of mixed fact and law arises from an extricable error, for instance, in identifying the proper legal test or articulating the principleof law, the standard of review is correctness. However, where the error in a question of mixed law and fact arises in applying thecorrectly identified legal standard or principle to a set of facts, the palpable and overriding standard will apply. [9] The deferential standard of review also applies in the family law context (Van de Perre v. Edwards, 2001 SCC 60 ,[2001] 2 SCR 1014; Barendregt v.

Grevliunas, 2022 SCC 22 at para 100-104; MacPhail v. Karasek, 2006 ABCA 238 at paras 25-27;Nicol v. Tremblay, 2021 ABCA 298 at para 8). [10] In Van de Perre, Justice Bastarache held (at para 25) that "an appellate court may only intervene in the decision of a trialjudge if [they] erred in law or made a material error in the appreciation of the facts.

Custody and access decisions are inherentlyexercises in discretion." Justice Bastarache noted the particular importance of finality in custodial disputes in discussing the standard ofreview applicable to family law cases, holding that (at para 13): "an appellate court may only intervene in the decision of a trial judge ifhe or she erred in law or made a material error in the appreciation of the facts." Justice Bastarache also cautioned appellate courts againsta reweighing of the evidence, stating instead (at para 15): As indicated in both Gordon and Hickey, the approach to appellate review requires an indication of a material error.

If there is anindication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of thefactors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored ormisdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily meanthat the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v.

Ashmore(1999), 1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only amaterial error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in away that affected his conclusion.

Without this reasoned belief, the appellate court cannot reconsider the evidence. [11] In Barendregt, Justice Karakatsanis (writing for the majority, Côté J. not dissenting on these points) noted that (at para 102)"an appellate court's role, as noted, is instead generally one of error correction" and (at para 103) "an appellate court may only intervenewhere there is a material error, a serious misapprehension of the evidence, or an error of law." In the absence of an error of law or apalpable and overriding error of fact, Justice Karakatsanis cautions (at para 104) that "deference is vital", that "appellate courts mustreview a trial judge's reasons generously and as a whole, bearing in mind the presumption that trial judges know the law," and that "anappeal is not a litigant's opportunity for a 'second kick at the can', especially in parenting cases where finality is of paramountimportance". [12] Without a doubt, relocation cases are highly contextual and turn on their facts.

Given these highly contextual decisions,appellate courts must take a restrained approach. In Ting v. Ting, 2022 ABCA 324, the Court of Appeal stated (at paras 5 and 6): [5] In respect of both the procedural and substantive issues raised on appeal, we are guided not only by the Divorce Act, RSC 1985, c3 (2nd Supp), but by the principles recently pronounced by the Supreme Court of Canada in Barendregt v Grebliunas, 2022 SCC 22,469 DLR (4th) 1 [Barendregt], a relocation decision which also dealt with the test for admitting new evidence in such appeals.

As theSupreme Court stated therein at para 9, an appeal is not a retrial and the "law relating to the best interests of the child has longemphasized the need for individualized and discretionary decision making". More specifically, appellate courts are not permitted tooverturn a trial judge's factual findings, including those involving expert evidence, absent palpable and overriding error. [...] [6] The appellant does not assert the trial judge erred in law, applied an incorrect test or considered inappropriate factors whenconsidering the child's best interests.

The trial judge's factual findings and the weight which she ascribed to factors bearing on the child'sbest interests otherwise warrant significant deference on appeal. While this Court recognizes the appellant father takes a different view ofthe evidence and seeks a different outcome, that is not the role of this Court; absent palpable and overriding error, a trial judge'sassessment of the evidence is to be given deference. [13] I turn to consider the decision-making framework applicable to relocation applications. D.

Relocation Decision-Making Framework [14] Relocation decisions are governed by the statutory framework set out in sections 16.9 to 16.96 of the Divorce Act, added by

SC 2019, c 16, which came into force on March 1, 2021 (OIC 2019-1143 and OIC 2020-0407). This statutory framework mirrorsdevelopments in the common law since Gordon v. Goertz, (SCC), [1996] 2 SCR 27 (Barendregt, at para 110). [15] Under the framework, a spouse with parenting time or decision-making authority who seeks to relocate a child must firstnotify the other spouse with parenting time or decision-making authority in the time and manner set out in subsection 16.9 of the DivorceAct. If the non-relocating spouse with parenting time or decision-making responsibility does not object to the relocation in the time andmanner set out in

section 16.91, the child's relocation is authorized, provided there is no order otherwise prohibiting the relocation.However, if the non-relocating spouse objects, they do so by filing the form prescribed by the regulations, setting out their reasons forobjection, their views on relocating spouse's proposal for the exercise of parenting time, decision-making responsibility, or contact, aswell as any other information prescribed by the regulations.

In the latter case, the proposed relocation can only then be authorized by acourt (whether by order of the court after hearing the matter on the merits or by a judgment enforcing an arbitral award where, forinstance, parties have agreed to submit the relocation dispute to an arbitrator, as here, under an arbitration agreement made under theArbitration Act, RSA 2000, c A-43, ss. 1(1), 2(1), and 49). [16] Specific to relocation decisions, Parliament requires the decision-maker[1] to determine what is in the best interests of thechild by taking into consideration not only the best interests factors set out in

section 16 of the Divorce Act but also the relocation-specific factors in subsection 16.92(1), including the following: (

a) the reasons for the relocation. (

b) the impact of the relocation on the child. (

c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting orderand the level of involvement in the child's life of each of those persons. (

d) whether the person who intends to relocate the child complied with any applicable notice requirement under

section 16.9,provincial family law legislation, an order, arbitral award, or agreement; (

e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside. (

f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time,decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence andthe travel expenses; and (

g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting orderhas complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of futurecompliance. [17] Notably, subsection 16.92(2) requires the decision-maker not to consider, if the child's relocation is prohibited, whether therelocating spouse would relocate without the child or not relocate. [18] The best interests of the child factors are set out in section 16(3).

The statute requires the decision-maker to take intoconsideration only the best interests of the child of the marriage in making a parenting order or a contact order, and in considering theenumerated factors in subsection (3), the decision-maker gives primary consideration to the child's physical emotional and psychologicalsafety, security, and well-being. Subsection 16(5) also requires the decision-maker not to consider the past conduct of any person unlessthat conduct is relevant to the exercise of their parenting time or decision-making responsibility. [19] Lastly,

section 16.93 of the Divorce Act sets out rules for determining the burden of proof in relocation cases.

Whereparenting is substantially shared, the spouse intending to relocate has the burden of proving that the relocation is in the child's bestinterests; however, where the spouse intending to move has the vast majority of parenting time, the spouse opposing the relocation hasthe burden. [20] In Barendregt, Justice Karakatsanis summarized the evolution of the decision-making framework applicable to relocationcases as follows (at paras 148ff): [148] More than two decades ago, this Court set out a framework for relocation applications in Gordon: paras. 49-50.

It applies torelocation issues that arise at first instance and in the context of applications to vary existing parenting orders. [149] Since then, our jurisprudence has refined the Gordon framework, and, subject to two notable exceptions, the Divorce Act haslargely codified it. Where the Divorce Act departs from Gordon, the changes reflect the collective judicial experience of applying theGordon factors. While Gordon rejected a legal presumption in favour of either party, the Divorce Act now contains a burden of proofwhere there is a pre-existing parenting order, award or agreement: s. 16.93.

And although Gordon restricted whether courts couldconsider a moving party's reasons for relocating, this is now an express consideration in the best-interests-of-the-child analysis:s. 16.92(1)(a). [150] The new Divorce Act amendments also respond to issues identified in the case law over the past few decades, which did notarise in Gordon.

Section 16.92(2) now provides that trial judges shall not consider a parent's testimony that they would move with orwithout the child. Furthermore, ss. 16(3)(

j) and 16(4) of the Divorce Act now instruct courts to consider any form of family violence andits impact on the perpetrator's ability to care for the child. [151] In light of the jurisprudential and legislative refinements, the common law relocation framework can be restated as follows. [152] The crucial question is whether relocation is in the best interests of the child, having regard to the child's physical, emotionaland psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary.

[153] Our jurisprudence and statutes provide a rich foundation for such an inquiry: see, for example, s. 16 of the Divorce Act . A court shall consider all factors related to the circumstances of the child, which may include the child's views and preferences, the history of caregiving, any incidents of family violence, or a child's cultural, linguistic, religious and spiritual upbringing and heritage.

A court shall also consider each parent's willingness to support the development and maintenance of the child's relationship with the other parent, and shall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child. These examples are illustrative, not exhaustive.

While some of these factors were specifically noted under Gordon , they have broad application to the best interests of the child. [154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases.

In addition to the factors that a court will generally consider when determining the best interests of the child and any applicable notice requirements, a court should also consider [the factors listed in 16.92] The court should not consider how the outcome of an application would affect either party's relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate.

These factors are drawn from s. 16.92(1) and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years. [155] As I have explained, several pillars underlying the Court's reasoning in Gordon have shifted over time, leading courts and now legislatures to refine, modify, and supplement the Gordon factors. These refinements leave us with a clear framework going forward. [ 21 ] I now turn to consider whether the Arbitrator erred in making the Award. E.

Arbitrator's Award [ 22 ] In the Award, the Arbitrator defined her jurisdiction and explained the background of the proceedings, summarized the proceedings, and listed the documentary evidence received. The Arbitrator identified the issues as whether it was in the best interests of S to relocate with AMLC to Warren, Manitoba, and if so, the appropriate parenting schedule.

Conversely, if she found it was not in S' best interests to relocate, she would determine the appropriate parenting schedule. [ 23 ] The Arbitrator dealt with a preliminary matter of a separation agreement, which she found not to be valid, on the basis that its terms were ambiguous and that neither party had obtained independent legal advice before signing it or was abiding by its terms.

That determination has not been challenged. [ 24 ] Regarding the relocation issue, the Arbitrator identified the governing legislation and considered the best interests factors in section 16(3) in light of the evidence before her. She discussed each section 16(3) factor under a separate heading, making findings of fact under each. I will return to the Arbitrator's consideration of these factors later. She then stated that she was obliged to consider the

section 16.92 factors, and listed them, though, unlike the section 16(3) best interests factors, did not consider these individually under separate headings, instead stating that "these additional factors have been taken into account in [her] direction below", which I find she did. [ 25 ] In making her decision, the Arbitrator stated that it "was not an easy decision to make," noting that there was "no meeting of the minds as to what the 'best interest' of S is." She noted the recent amendments to the Divorce Act were helpful in assisting decision- makers in making relocation decisions, that the list of factors to consider was lengthy and that "no one factor outweighs the others, and that all factors must be considered and applied to each specific set of facts". [ 26 ] Noting that it was impermissible for her to consider if S' relocation was prohibited, whether AMLC would relocate with S or not relocate, the Arbitrator stated that she made the award on the assumption that AMLC would be moving to Manitoba and that she did not consider the option of what may happen if she were to stay in Alberta.

She stated that the only consideration for her was what was in S' best interests, and that she had considered his physical, emotional, and psychological safety, security, and well-being only. [ 27 ] The Arbitrator stated several reasons for denying the relocation application, including the following: (

a) S had been parented by both parents almost every other day since late 2020 or early 2021, and that aside from vacation periods that S spent with AMLC and her family in Manitoba. (

b) BDC was a very important and regular part of S' life. (

c) Neither parent was better than the other. (

d) AMLC's parenting application and her proposal for parenting time for BDC greatly reduces his ability to be a present, active participant in S' life, and deprives S from having the ability to continue building a strong foundation with his father. (

e) AMLC's parenting plan does not indicate a willingness on her part to support S' bond with his father and that S' connection with his father should be permitted to flourish and grow, just as the bond with his mother should be. (

f) S is at a time in his life when solidifying and developing the bonds with both parents is important, and that S is attached to his parents, not the location where he resides. (

g) AMLC is prioritizing her need for S' exposure to his Métis/Francophone community and culture, and exposure to her extended family, over S' need for a strong father figure in his life, and that her proposed parenting plan should S move to Manitoba with her allocates Brander to the sidelines of S' life. (

h) AMLC's financial situation is not as dire as she had presented it, and that her money management strategies did not lead to a result of a dire circumstance worthy of uprooting S from the parenting arrangement that is his norm, and that AMLC's family offer of

financial support could not come at the sacrifice of S' relationship with his father. (

i) The relocation to Manitoba would result in a significant reduction of parenting time for BDC and she was concerned that S would become so involved in the Métis/francophone community in Warren that time with his father would become less and less important as time passes. [ 28 ] In the end, the Arbitrator found that, in balancing all the factors of the Divorce Act , she denied AMLC's request to relocate with S to Warren, Manitoba, finding the relocation not to be in S' best interests. F. Analysis 1.

The arbitrator made errors of law, errors of mixed fact and law, or errors of fact in considering the best interest factors, including the relocation-specific factors in 16.92 [ 29 ] In this section, I address the Appellant's arguments regarding errors made by the arbitrator in considering the best interests factors, including the relocation-specific factors set out in

section 16.92 . The Appellant often argues that the Arbitrator has either given too much or too little weight to an individual factor in her overall consideration. Except as specifically discussed in these reasons, I do not accept AMLC’s arguments that the Arbitrator erred in the weight she gave to any individual factor or in the overall consideration of the factors.

In that regard, the Arbitrator is entitled to significant deference (see, inter alia , Ting , at para 6 ). 16(3)(a) – The child's needs, given the child's age and stage of development, such as the child's need for stability [ 30 ] AMLC argues that the Arbitrator erred in her consideration of this factor by focusing her analysis on financial factors relating to each parent, concluding that both parties could provide a stable home for S, which they had been able to do both as a married couple and as separated parents.

AMLC argues that the Arbitrator imparted heavy criticism on her, and none on BDC, and that she failed to recognize improvements in AMLC's finances or to recognize the long-term stability that could be provided in Manitoba, where family support would surround AMLC. AMLC argues that the Arbitrator erred in law because she did not fully weigh or gave no weight to AMLC's improved financial stability if she were to move to Manitoba.

In her brief but not in oral argument, she also submitted that the Arbitrator made findings of fact unsupported by the evidence and that she failed to consider other important factors relating to S' needs, yet she identifies none. She also argues that the Arbitrator improperly assessed this factor on the basis that it is not a tool to assess financial stability. [ 31 ] In my view, the Arbitrator did not err. She was presented with financial information regarding both parties, considered it and made findings of fact available to her on the evidence.

Moreover, I reject the AMLC’s submission that the Arbitrator improperly assessed this factor by focusing on her financial stability since AMLC’s written submissions before the Arbitrator were focused almost exclusively on financial considerations and on AMLC's submission that BDC was unreliable as a co-parent. The Appellant cannot now complain that the Arbitrator improperly assessed the evidence pertaining to this factor when she focused her submissions on financial considerations.

Indeed, the Arbitrator considered the evidence of AMLC's financial dire straits and made findings of fact that were more than available on the record before her.

In response to AMLC's submissions that BDC was unreliable as a coparent, the evidence before the Arbitrator more than supported and allowed her to reject AMLC's position. 16(3)(b) – The nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life [ 32 ] In considering this factor, the Arbitrator noted that AMLC's evidence was centered on her strong family attachments but emphasized AMLC's "lack of consideration for the importance of BDC ... in S's upbringing." She wrote that the "only cogent comment in this regard is that she stated that BDC would be welcome to stay in her home to 'allow for full transparency within S' life,” leading the Arbitrator to be troubled by the fact that "AMLC provided little evidence as to the importance of BDC's role as S's father" and that AMLC's evidence suggests that she places a stronger importance on S's attachments and relationship with her extended family and friends than she does with his relationship with his father". [ 33 ] Concerning the Arbitrator's consideration of this factor, AMLC takes issue with the language that the Arbitrator used in the Award, framing her evidence as "submissions" while framing BDC’s evidence as fact.

She points to a disparity in the number of sentences used discussing her relationship with S (2) versus the number discussing his (9). I reject these arguments because they do not evince a reviewable error.

The role of an appeal court is not to parse the reasons of the decision-maker to assess the number of sentences or the number of words used to describe the evidence to find an error. [ 34 ] More persuasively, AMLC argues that the Arbitrator erred in her consideration of AMLC's sister's affidavit evidence, which the Arbitrator found to lack consideration for the importance of BDC's relationship with S and his upbringing, stating: What is noted by this Arbitrator in [AMLC's sister's] evidence was the lack of consideration for the importance of BDC, as S' father, in S' upbringing.

The only cogent comment in this regard is that as stated that BDC would be welcome to stay in her home to "allow for full transparency within S' life". It must be noted that this is the same home that AMLC is proposing she will reside in if the relocation is permitted. It is not clear whether any thought was put into whether this proposed arrangement would prove to be uncomfortable for both parties and ultimately for S. [ 35 ] I agree with AMLC that the Arbitrator erred in faulting AMLC's sister's evidence for not bolstering BDC. Clearly, the purpose

of that affidavit was to support AMLC's relocation application and to provide additional context, particularly as it relates to factor in paragraph 16(3)(

f) about S' Métis/francophone culture and heritage, discussed later in these reasons.

More importantly and contrary to the Arbitrator's finding, AMLC’s sister’s affidavit specifically stated that "[she] promise[s] to continue supporting a healthy relationship with [BDC]" and that she and her family "are committed to promoting S' relationship with his father as we understand the importance of continuing a healthy family dynamic with [BDC] as S' father." In my view, the Arbitrator erred in fact by misconstruing AMLC’s sister’s evidence. [ 36 ] I also agree with AMLC’s submission that the Arbitrator erred in referencing AMLC’s lack of evidence about "the importance of BDC's role as S' father" while at the same time ignoring the fact that BDC gave no evidence on the importance of S' relationship with AMLC.

Moreover, AMLC’s affidavit evidence speaks to the significance of BDC as S' father. For instance, in paragraph 34, she deposed that she "will always do everything [she] can to support S' relationship with BDC because S really loves his father and needs BDC in his life"; and paragraph 35, where she says: "[i]t is my genuine desire that the Respondent remains actively involved in S' life after we relocate.

I want the Respondent to feel comfortable and at peace with our future long-term parenting arrangement and I want him and S to have a close relationship". [ 37 ] For these reasons, I find that the Arbitrator erred in her assessment of the evidence pertaining to this factor. 16(3)(c) – Each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse [ 38 ] Regarding this factor, the Arbitrator, while giving no examples, expressed concern with "the overall tone of AMLC's evidence" and "the negative commentary about BDC that is throughout her evidence and written submissions.".

She specifically referenced BDC's submission that AMLC's intentions to support his relationship with S were not sincere, that the filing of the Notice of Relocation was proof of that in and of itself, and that her unilateral decision to reduce BDC's parenting time in mid-2021 further substantiated BDC's opinion in that regard. [ 39 ] Clearly, the filing of a Notice of Relocation should not be taken, in and of itself, as evidence that the relocating parent is unwilling to support the development and maintenance of the child's relationship with the non-relocating parent.

To do so would render consideration of this factor meaningless if, as a starting point, the parent intending to relocate was penalized for complying with the statutory requirement of giving notice of their intention to relocate with the child. In this case, the Arbitrator specifically referenced the relocation application (along with AMLC’s proposed parenting plan, discussed below) as the bases for finding that AMLC was unwilling to support the development and maintenance of S’ relationship with BDC.

Accordingly, Arbitrator erred in law in her assessment of this factor. [ 40 ] The Arbitrator also accepted BDC's submission that AMLC's proposed parenting plan "is not that of a person wanting to develop and maintaining her child's relationship with the other parent".

As with the filing of the relocation application, the Arbitrator found that AMLC’s proposed parenting plan “does not indicate a willingness on her part to support S’ bond with his father” and that her proposed parenting plan “allocates BDC to the sidelines of S’ life.” [ 41 ] AMLC's parenting proposal was for S to be with BDC in Calgary for one week, every two months, with two additional two- week periods during the year. Her plan also contemplated daily telephone or video calls between father and son.

The Arbitrator estimated this would amount to 10 weeks a year, noting that visits would occur "approximately seven weeks between in-person visits between S and his father." The Arbitrator also referenced AMLC’s admission that her proposed parenting plan would have to be changed once S started in kindergarten (Fall 2023), and that AMLC did not know how. [ 42 ] By contrast, BDC's parenting plan allowed for more frequent contact, though less lengthy, almost monthly, mostly on weekends that include a statutory holiday, and during spring and summer breaks.

Still, the overall number of days S would spend with AMLC in Manitoba would not be significantly greater than the number of days he would spend in Alberta with BDC pursuant to AMLC's proposed plan.

In addition, BDC's proposed parenting plan would involve more frequent travel between Manitoba and Alberta, increasing overall travel time. [ 43 ] AMLC argues that the Arbitrator erred in her assessment by not acknowledging that there was only a slight difference in the number of days that S would be in the non-resident parent's care under both proposed parenting plans and that the Arbitrator did not explain why she preferred frequency over duration and less overall travel time. [ 44 ] In my view, the evidence does not support the Arbitrator’s assessment and conclusions regarding the proposed parenting plans on AMLC’s willingness to support the development and maintenance of S’ relationship with BDC.

The main difference between the parenting plans was that AMLC’s parenting plan favoured duration of visits over frequency of visits, which also would have reduced the overall cost of travel and travel time between Alberta and Manitoba. In both proposed parenting plans, the overall number of days spent with the non-primary residential parent was approximately the same, and both plans included daily video calls.

Neither plan was manifestly one-sided. [ 45 ] Given the near equivalency of the proposed parenting plans in terms of time spent with the other parent, the findings that AMLC’s proposed parenting “greatly reduces BDC’s ability to be a present, active participant in S’ life”, “allocates BDC to the sidelines of S’ life”, “does not indicate a willingness on her part to support S’ bond with his father” could not reasonably be made without also making the reciprocal findings that BDC’s proposed parenting plan did the same as it relates to AMLC.

Accordingly, the Arbitrator erred in her assessment of the impact of the proposed parenting plans on each party’s willingness to support the development and maintenance of the other party’s relationship with S. [ 46 ] For these reasons, I am satisfied that the Arbitrator erred in her assessment of this factor. 16(3)(f) – The Child's cultural, linguistic, religious, and spiritual upbringing and heritage, including

Indigenous upbringing and heritage [47] AMLC and S are francophone and Métis of the Red River Métis Nation in Manitoba. By the arbitration hearing, none of theparties disputed that the Red River Métis Nation is distinct from other Métis nations. Moreover, because of the subject matter and natureof questioning of AMLC on her affidavit in advance of the Arbitration hearing, AMLC presented clear evidence as to how these nationswere distinct.

Indeed, the Arbitrator noted AMLC's extensive evidence of the benefits of being raised in a Métis/Francophone culture inManitoba, surrounded by family, friends, and a supportive community, as well as the importance of that heritage for AMLC and theimportance she places on it. [48] Yet, in considering S’ cultural, linguistic, and Indigenous upbring and heritage, which is of Red River Métis Nation inManitoba, the Arbitrator was critical of AMLC in this regard.

In one instance, the Arbitrator stated: AMLC has strongly suggested that the only way for S to be properly exposed to her culture is by living in Manitoba on a full-time basiswith her, and being part of the Manitoba Métis Federation. AMLC shows a strong reluctance to have S participate in any Alberta Métisprograms. [emphasis added] In another instance, the Arbitrator stated: BDC has submitted that he is willing to work with AMLC to ensure that S develops a strong connection to his Métis/Francophoneheritage, regardless of where he is living.

BDC has looked into options for involving S in Métis traditions in Alberta. AMLC has refusedto consider having S participate in Métis activities in Alberta as they differ from the traditions and culture of the Manitoba Métis. [emphasis added] [49] In oral argument, Counsel for BDC argued that there is nothing inherently wrong with exposing a child to different culturesand heritages. I agree. However, paragraph 16(3)(

f) requires the decision-maker to consider S’ cultural, linguistic, and Indigenousheritage and upbringing. Therefore, exposing S to or having him participate in activities specific to Alberta Métis culture and heritage,while not inherently wrong, should not be viewed as an acceptable substitute for exposing S to and having him participate in activitiesrelated to his own distinct Indigenous culture, heritage, and upbringing.

That AMLC shows a strong reluctance or has refused to considerhaving S participate in Métis activities in Alberta must be understood in that context. [50] Regarding BDC's Scottish heritage, the Arbitrator noted BDC’s acknowledgement that his connection to his heritage was notas strong as AMLC's connection to her Métis heritage. She also indicated in her Award that BDC was disappointed that AMLC "appearsto give no consideration to his heritage".

That said, BDC provided little to no evidence of the importance he attaches to his Scottishheritage and culture. [51] The Arbitrator ultimately found that AMLC was "the person best suited to ensure that S' connection to his Indigenous,Métis/Francophone roots develops and thrives".

AMLC’s counsel submitted that the Arbitrator improperly weighed this factor in heroverall assessment by appearing to chastise AMLC for her “strong reluctance” and “refusal” to have S participate in Métis activities inAlberta, and in support of that submission, also pointed to the Arbitrator’s finding (at page 18) that AMLC is prioritizing her need for S’exposure to his Métis/francophone community and culture over the need for a strong father figure in his life as well as her concern (atpage 19) that S may become so involved in the community in Manitoba that time with his father will become less and less important astime passes. [52] AMLC gave extensive (and uncontested) evidence about the Red River Métis culture, language, and heritage (see pages 18-21, 29-30, and 32 of the hearing transcript) and how they differ from those of the Alberta Métis.

The Award recognizes that AMLC is amember of the Manitoba Métis Federation and that she is of francophone descent, immersed in the cultural and linguistic heritage of theMétis/Francophone community. However, the Award does not mention that Red River Métis and Alberta Métis are distinct. In my view,it was an important and meaningful distinction to make. Instead, the Arbitrator is critical of AMLC for her “strong reluctance” or for“refusing” to have S participate in Métis activities in Alberta.

This leads me to believe that the Arbitrator either forgot, ignored, ormisconceived the evidence of the distinction between the Red River Métis and Alberta Métis in a way that affected her findings,particularly those relating to AMLC’s strong reluctance and refusal to have S participate in Alberta Métis activities and culture (Van dePerre, para 15). In my view, there was no reason for these criticisms, and I am satisfied that those criticisms impacted the weight givento this factor.

Accordingly, I am further satisfied that the Arbitrator erred in her overall assessment of the best interests factors by notgiving appropriate weight to this factor. 16.92(1) – Relocation-specific factors to be considered [53] With respect to the relocation-specific factors enumerated in 16.92 of the Divorce Act, the Appellant argues that the Arbitratorerred in law by failing to conduct a full and sensitive inquiry of these factors.

The Respondent took issue with the Appellant's use of thewords "full and sensitive inquiry" arguing that those words imply a subjective standard and that it has not been identified as the correctlegal standard. [54] The expression "full and sensitive inquiry" as it relates to the best interests of the child assessment finds its origin in paragraph52 of Gordon where McLachlin J. (as she then was) stated that "the reasons of the trial judge fall short of demonstrating that he engagedin the full and sensitive inquiry into the best interests of the child required by s. 17 of the Divorce Act".

After Gordon, many judgmentshave specifically held that consideration of the best interests factors requires a full and sensitive inquiry: Sabourin v. Young, (ONCA); Bateman v. Bateman, 2016 NLCA 55; Gilles v. Gilles, 2008 SKCA 97; GR v. CM, 2003 ABCA 268; MLB v.WRP, 2019 NBCA 63. Moreover, the

preamble to subsection 16(3) requires the decision-maker to consider all factors related to thecircumstances of the child, including the enumerated factors therein, and the

preamble to subsection 16.92(1) states that the court shall,to determine what is in the best interests of the child, take into consideration, in addition to the subsection 16(3) factors, the relocation-

specific factors. In my view, nothing in the 2019 Divorce Act amendments excludes a full and sensitive inquiry of the best interestfactors, including the relocation-specific factors, as required by Gordon and subsequent caselaw. [55] In any event, I am not satisfied that the Arbitrator failed to consider the relocation-specific factors as subsection 16.92requires. While it may have been preferable for the Arbitrator to arrange her consideration of the relocation-specific factors underseparate headings, a fair reading of her Award demonstrates that she considered them and took them into account.

I have also not beenpersuaded that the Arbitrator erred in her consideration of any relocation-specific factor. Conclusion [56] For all these reasons, the Arbitrator erred in her assessment of three best interests factors: (1) the nature and strength of the S’relationship with each spouse; (2) each spouse’s willingness to support the development and maintenance of the child’s relationship withthe other spouse; and

(3) S’ cultural, linguistic, religious and spiritual upbringing and heritage, including S’ Indigenous upbringing andheritage. In my view, these errors materially impacted the Arbitrator’s overall assessment of the factors and the weight given to each. Accordingly, the Award should be set aside. G. Reasonable Apprehension of Bias [57] The Appellant argues that the Award demonstrates that the Arbitrator had a reasonable apprehension of bias against AMLC.As I mentioned, the Appellant's brief did not address this issue.

However, her counsel made oral submissions at the hearing of theappeal. [58] The oft-quoted test for reasonable apprehension of bias in Committee for Justice and Liberty v. National Energy Board, (SCC), [1978] 1 SCR 369, at 394, 1976 CanLII, was recently affirmed in Yukon Francophone School Board,Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, as follows: . . . what would an informed person, viewing the matter realistically and practically — and having thought the matter through —conclude.

Would [they] think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would notdecide fairly. [59] In Nicol v. Tremblay, 2021 ABCA 298, the Court of Appeal further instructs (at para 9) "substantial grounds and cogentevidence are required to lead to the conclusion that such an apprehension is reasonable". [60] Given my conclusion on the first ground of appeal, it is not strictly necessary for me to decide this issue.

However, in myview, none of the Appellant's oral submissions regarding bias rest on substantial grounds or cogent evidence, and no informed person,viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not thatthe Arbitrator, whether consciously or unconsciously, did not decide this matter fairly for the reasons advanced by the Appellant. H.

Disposition [61] Pursuant to subsection 44(1) of the Arbitration Act, the Court has the power to confirm, vary or set aside an award, or mayremit the award to an arbitrator and give directions about the conduct of the arbitration. AMLC seeks an order setting aside the Award,and specifically requests that the matter not be remitted to the Arbitrator, for two main reasons. First, she asserts a lack of continuedconfidence in the Arbitrator.

Second, she no longer has the financial means to afford the costs of arbitration. [62] At the hearing, AMLC's counsel also sought an order granting AMLC primary parenting of S in Warren Manitoba. She alsosought an order allowing the AMLC to bring a new mobility with a hearing on an expedited basis, with interim relief granting herprimary parenting of the child in Warren, Manitoba. [63] In my view, the appropriate remedy is to set aside that part of the Award dealing with relocation. If AMLC wishes to bring anapplication for relocation before this Court, she may do so by attending Family Docket Court.

Any interim parenting orders sought mayalso be addressed in a Notice to Attend Family Docket Court. [64] AMLC also seeks to set aside the award of costs of the arbitration proceedings. This issue was not fully canvassed in theparties' briefs or at the hearing, and it is complicated by the fact that the Award addressed not only relocation but other matters. As such,it would be inappropriate to disturb the costs award without further submissions.

Unless the parties can agree on costs, including thecosts of this appeal, each party may provide submissions on costs of the arbitration and the appeal, not exceeding 5 pages, double-spacedwithin 60 days. Heard on December 2, 2022. Dated at Calgary, Alberta, on March 28, 2023.

M.H. Bourque J.C.K.B.A. Appearances: R. Bloomer for the Appellant M. Taylor-Cole for the Respondent