Child Relocation Requests and Conditional Parenting Orders

In Friesen v Friesen, 2023 SKCA 60 [Friesen], the Court of Appeal upheld the Trial decision of Friesen v Friesen, 2022 SKQB 83 [Trial Decision] which dismissed the mother’s request to relocate with the child to Alberta, and permitted the father’s request to increase his parenting time to equal shared parenting.

On appeal, it was suggested by the mother that when a Court is faced with a request by one parent to relocate with a child, the Court must decide between one of two options and nothing further:

1. permit a relocation and Order the child to be in the primary care of the relocating parent; or
2. dismiss the relocation request, assume the relocating parent will still relocate, and Order the child to be in the primary care of the other parent.

The Court of Appeal disagreed. It addressed the recently amended provisions of the Divorce Act with respect to relocation requests, and made an important determination regarding the ability of Courts in Saskatchewan to make ‘conditional orders’ regarding relocation in the event a relocation is not allowed (para 98):

… when a relocation application is made, or relocation is sought as part of the original determination by a court regarding parenting arrangements, the judge should apply an analysis that blends all the factors from s. 16 and s. 16.92 of the Divorce Act and determine whether the move is in the best interests of the child. The judge should compare the two options in a binary fashion — the child moves with the relocating parent or resides primarily with the other parent in the current location. Whether the relocating parent would move absent permission for the child to move is irrelevant to this analysis. A comparison is not to be made that involves both parents remaining in the current locality. Only if relocation is not allowed should the judge consider whether a conditional order is in the best interests of the child.

[emphasis added]

Friesen confirms that if a Court determines it is not in the best interest of a child to relocate with a relocating parent, the Court may then consider whether a conditional parenting order be implemented in the event the relocating parent ultimately does not relocate.

The Court of Appeal provided numerous reasons for its conclusions:

• First, the primary focus remains that an Order must be consistent with the best interests of a child. If the Court was limited in the manner suggested by the mother, the relocating parent would then be committing to moving regardless of whether the child would come with them. The Court of Appeal stated that “not only does this place the parent who desires to move in a very difficult position, it could often result in the court making an order that is not in the best interests of the child”.
• The Court of Appeal continued that if these types of conditional orders are not permitted, there would be a chilling effect on relocation applications because a relocating parent would be hesitant to take the risk of a switch in primary residency should the relocation request be unsuccessful. The availability of a conditional order solves this conundrum.
• Additionally, the unavailability of conditional orders would lead to the ludicrous situation of some parents who are not granted permission to move, but who will not move without their child, and thereafter immediately return the matter back to Court to request more parenting time with the child on the changed circumstances of them not relocating.

Ultimately, Friesen sets out the proper approach to be taken by a Court in Saskatchewan when tasked with a relocation request and has confirmed that our Courts may make conditional orders for parenting arrangements, in the event a relocation is not permitted.

The mother has recently sought leave to be permitted to appeal to the Supreme Court of Canada. Her application has not been determined as of the current date.

The McDougall Gauley Family Law team has experience navigating difficult custody matters. If you need assistance, please feel free to contact any member of our Family Law team.