BA v OA, 2023 ABKB 205

Court of King’s Bench of Alberta Citation: BA v OA, 2023 ABKB 205 Date: 20230411 Docket: FL13 02065 Registry: Ft. McMurray Between: BA Plaintiff - and - OA Defendant Corrected judgment: A corrigendum was issued on April 12, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Endorsement of Honourable Mr. Justice Douglas R. Mah _______________________________________________________ A. Background [ 1 ] The issue before the Court in this case is whether there is an issue before the Court.

To wit: • When counsel for a cross-applicant cancels the cross-application, is the original application also cancelled? and

• When is an application moot, and who gets to decide mootness? [ 2 ] This matter was an add-on to a full family law chambers list on April 5, 2023 in Fort McMurray. The matter had been placed on the list so that the father’s application, which had been scheduled for June 8-9, 2023, could be spoken to. [ 3 ] Both counsel appeared by Webex. It turned out not to be a simple matter. The entire argument took 30 minutes and it was, to say the least, animated.

As I was not able to review the file in advance, I indicated to counsel I would do so and give direction by April 11, 2023 as to whether the father’s application would take place on June 8 -9, 2023 or not. [ 4 ] This is a bitterly contested parenting dispute. The mother initially moved from Fort McMurray to Calgary on February 15, 2020 for employment reasons, leaving their three children with the father. The children ended up with their mother in Calgary as of July 29, 2021, although the parties disagree as to circumstances that led up to that relocation.

The father says it was intended only to be a two- week visit by the children to Calgary and the mother says that she basically had no choice but to take over the care of the children in Calgary due to the father’s inability to do so for health reasons. Between February 15, 2020 and the first of the Court Orders described below on January 27, 2023, there was no parenting Order in place and there has never been a Court sanctioning of the move of the children from Fort McMurray to Calgary.

The father says, in effect, that he never agreed to the children relocating to Calgary, nor did he acquiesce because he always believed the mother would return the children to Fort McMurray without Court Order. The mother contends that if the father did not outright agree to a relocation from Fort McMurray to Calgary, then he acquiesced through his conduct. B.

Court Activity in 2023 [ 5 ] What happened next was a veritable flurry of Court activity in the first three months of 2023, as follows: • The mother advised the father on January 18, 2023 that she was removing the children from Calgary to Texas, in consequence of which the father obtained an Emergency Order from Justice Eamon on January 27, 2023 prohibiting the removal of the children from Alberta until an urgent chambers hearing in Calgary on January 30, 2023. • On January 30, 2023 Justice K. D.

Nixon extended the prohibition Order until February 8, 2023 at which time it was to be reviewed in family law chambers in Fort McMurray. • On February 8, 2023 Justice Inglis gave an Order further prohibiting the removal of the children from Alberta until further Order and ordering the children to be returned to the father’s primary care by February 25, 2023. • On or about February 15, 2023, the mother relocated the children to Toronto, without notice to the father. • On February 24, 2023, the father brought an application for the return of the children to his care in Fort McMurray, or alternatively that the mother return with the children to Calgary. • On February 27, 2023 Justice Renke vacated Justice Inglis’ Order and ordered that the mother not remove the children from Ontario or Canada until further Order and not relocate them from the city of Toronto.

The matter was adjourned to March 8, 2023 for further hearing. • On March 6, 2023 the mother filed a cross-application for Court approval of the children’s relocation to Ontario with her. • On March 8, 2023 Justice Dilts made two orders in relation to this matter: • The first Order ordered the children returned to Alberta by March 24, 2023, either in the care of the mother in Calgary or in the care of the father in Fort McMurray.

The Order also stated that the mother’s relocation application was scheduled for an oral hearing on June 8 and 9, 2023. • The second Order stated in the recitals: “UPON a hearing having been set for the hearing of the parties’ respective applications ; and UPON noting that a procedural order pursuant to Rule 4.11 will assist in managing the action,” and then ordered at para 1 that “ This action shall proceed to a 2 day oral hearing on June 8 – 9, 2023” and gave directions as to filing deadlines and procedure. (underlining added) • By March 30, 2023 the mother had decided to return to Calgary with the children and abandoned the relocation application to Ontario.

Her counsel contacted the Fort McMurray Court Co-ordinator to purportedly cancel the two-day viva voce hearing ordered by Justice Dilts in her first Order. The father’s counsel took the position that the June 8 – 9 dates were still in place for the father’s application. Given this disagreement, the matter was added to my family law chambers list on April 5, 2023 to be addressed. C. Is the Father’s Return Application still before the Court? [ 6 ] The attendance before me primarily concerned counsels’ differing

interpretation of Justice Dilts’ two Orders. The father’s counsel submitted that his initial return application filed January 24, 2023 remained outstanding and requested that June 8, 2023 be confirmed for an oral hearing with respect to that application. She suggested that the June 9, 2023 date could be released since the mother’s relocation application was not proceeding.

The mother’s counsel took the position that there was no return application by the father properly before the Court and referred me to the first of Justice Dilts’ Orders which stated that the mother’s application to relocate the children to Ontario (now abandoned) was scheduled for an oral hearing on June 8 and 9, 2023. Presumably, the mother’s position was that the underlying premise for the father’s application was that the children had been removed to Toronto. The alternative remedy requested by him was that the children be returned to Calgary to live with the mother.

As this has now happened, the mother would argue that the underlying premise has now evaporated and along with it the father’s need to bring his application. In other words, the father’s

application is now moot. [7] The father argues (as he states in his February 22, 2023 affidavit) that he never agreed to the relocation of the children fromFort McMurray to Calgary, that restoration of the children to his primary care in Fort McMurray was the primary relief that he sought inhis application, and that Justice Dilts ordered his application to be heard on the June dates. [8] The two Orders by Justice Dilts must be read together and in the context of the whole course of proceedings.

After being puton notice that the mother intended to unilaterally relocate the children to Texas, the father obtained an Order prohibiting that move andthen an extension Order (from Justices Eamon and then Nixon respectively). On further application, with notice (although the mother didnot appear), the father then obtained an Order from Justice Inglis returning the children to his care in Fort McMurray as of February 25,2023.

On the date of the Inglis Order (February 8, 2023), the children were still in Calgary and, as far as the father knew, they wereunder Court Order to be returned to him in Fort McMurray in 17 days. [9] The mother then unilaterally moved the children to Toronto on February 15, 2023. It is unclear from the Court file whetherthe mother had notice of the Inglis Order on that date. Upon the father learning of this relocation, he instructed counsel to file hisFebruary 24, 2023 application, returnable February 27, 2023.

The mother replied with her cross-application for ex-post-facto approval ofthe relocation to Toronto. [10] It was within this contextual setting that Justice Dilts gave her two Orders. [11] The first Order spoke to what would happen to the children pending the mother’s application. The second Order is aprocedural Order that clearly refers to both applications (the mother’s relocation application to Ontario and the father’s returnapplication) and sets out a procedure for the hearing of those applications.

The primary form of relief sought by the father was the returnof the children to his primary care in Fort McMurray. [12] Subsequent events (the mother abandoning her relocation application) have overborne some of the components of both of theOrders of Justice Dilts. However, the father’s return application, filed February 24, 2023, has never been adjudicated and remains extantbefore the Court. Justice Dilts’ procedural Order refers to both applications.

In particular, I interpret para 1 of that Order as referring toboth applications, although only one is now proceeding. [13] Although it is disputed, the father in his evidence says he did not agree with the children’s relocation to Calgary. On February8, 2023 when the children were still in Calgary, he obtained a Court Order restoring the children to his care in Fort McMurray.

It is clearthat regardless of the mother’s intentions, whether she wished to have the children with her in Calgary, Toronto or Texas, the father (atleast he says as much) always wanted to have the children with him in Fort McMurray. [14] The Supreme Court of Canada defined mootness and its effect in Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 at pg 353: The doctrine of mootness is an aspect of a general policy or practice that a Court may decline to decide a case which raises merely ahypothetical or abstract question.

The general principle applies when the decision of the Court will not have the effect of resolving somecontroversy which affects or may affect the rights of the parties. If the decision of the Court will have no practical effect on such rights,the Court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commencedbut at the time when the Court is called upon to reach a decision.

Accordingly if, subsequent to the initiation of the action or proceeding,events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties,the case is said to be moot.

The general policy or practice is enforced in moot cases unless the Court exercises its discretion to departfrom its policy or practice. (underlining added) ... [15] See also the Court of Appeal’s decision in The Alberta Teachers' Association v Buffalo Trail Public Schools RegionalDivision No 28, 2022 ABCA 13 at paras 11 & 12. [16] The event subsequent to the filing of both motions of the mother re-relocating with the children from Toronto back to Calgarydid not cause the live controversy between these parents to fade into nothingness.

The controversy is very much alive: whether thechildren should live with the mother in one city or the father in a different city. [17] It is up to the Court, not one of the counsel or parties, to decide whether a proceeding is moot. This is inherent in theBorowski approach to mootness which requires the Court first to determine whether a matter is moot and, if so, then to inquire intofactors bearing on a discretion to hear the matter nonetheless: Bellatrix Exploration Ltd v BP Canada Energy Group ULC, 2021 ABCA148 at paras 10-11 and Access Mortgage Investment Corporation

(2004) Limited v Arres Capital Inc, 2021 ABCA 325at para 23. [18] Moreover, I know of no authority or rule of practice that permits counsel for one party, without consent, to withdraw orabandon the other party’s as-yet unadjudicated application. [19] The mother can abandon her own application. In doing so, she does not cause the father to abandon his application. Nor canthe mother’s counsel rely on an overly literal and non-contextual

interpretation of Justice Dilts’ first Order to oust the fact that JusticeDilts also ordered the father’s application to be heard on June 8 and 9, 2023. [20] I conclude that the mother’s abandonment of her application does not affect whether the father’s as-yet unadjudicatedapplication can proceed. Furthermore, there has never been Court approval of the relocation to Calgary.

The father’s application can alsoserve as a means to determine, on a best-interests-of-the children basis, whether the mother’s relocation of the children to Calgary isvalid under the relocation provisions of the Divorce Act. [21] Even if I were to say to the father that his present application is a nullity because the children have been returned from

Toronto to Calgary, there is nothing to prevent him from filing a new application for return of the children to his care in Fort McMurray from Calgary. He is entitled to oppose the relocation having regard to the factors in

section 16.92 of the Divorce Act . So, I accomplish nothing except delay by denying the father’s request to have his current application proceed as scheduled. [ 22 ] The mother may well, on the merits, have an argument that the father either consented or, through conduct and the elapse of time, has acquiesced to the children’s relocation from Fort McMurray to Calgary.

On the other hand, the father may well have an argument that the mother’s two recent decisions to relocate the children in contravention of the relocation provisions of the Divorce Act (which came into effect on March 1, 2021), and actually carrying out the latter of those two decisions, is such a disregard of his parenting rights that the children should be returned to live with him in Fort McMurray.

All of this underscores that the parenting issue is not moot and cries out for adjudication. [ 23 ] In order to make the best use of Court time, and for the purpose of providing certainty in the lives of these children before the commencement of the next school year, I direct and confirm that the father’s return application shall be heard in Fort McMurray on June 8 and 9, 2023. Even though the mother’s application for after-the-fact relocation approval to Toronto has been withdrawn, I feel there is enough in controversy that both days are required for the hearing.

All that has changed is that Calgary is now substituted for Toronto as far as the “best interests” analysis is concerned. The fact that the appearance before me, added by me ostensibly for “speak to” purposes, lasted for 30 minutes of vigorous and contentious debate indicates the depth of controversy and degree of entrenchment between these parties. Two days are required. D.

Procedural order Varied [ 24 ] Justice Dilts’ procedural order is varied only as follows and otherwise remains in effect: • as applicant, father will file and serve his final affidavit on or before April 21, 2023; • the mother, as respondent, will file and serve her final affidavit on or before April 28, 2023; • the issues for determination at the hearing shall be: • Whether the father consented to or acquiesced to the children relocating from Fort McMurray to Calgary under the mother’s primary care and, if so, the effect of any such consent or acquiescence? • Whether it is in the best interests of the children to be in the primary care of the father in Fort McMurray or the primary care of the mother in Calgary? [ 25 ] At the appearance before me on April 5, 2023 both counsel wanted to make certain costs submissions to me regarding previous Court attendances.

I directed them to do so in writing. I have now had the chance to review Justice Dilts’ first Order. To the extent that doing so is not in conflict with para 5 of Justice Dilts’ first Order, both counsel may make costs submissions to me in letter form, not to exceed two singled-spaced pages, excluding authorities and supported by an affidavit (if necessary) and a draft Bill of Costs. Heard on the 5 th day of April, 2023. Dated at the City of Ft. McMurray, Alberta this 11 th day of April, 2023. Douglas R. Mah J.C.K.B.A.

Appearances: Liane Houssami, Shift Legal Solutions for the father, BA Racheal Akporhuarho, Cheals Law for the mother, OA

_______________________________________________________ Corrigendum of the Endorsement of The Douglas R. Mah _______________________________________________________ 1. Para 19, second sentence changed to read from “father's counsel...” to “mother's counsel...”