Valenzuela-Sone v. Barnachea, 2023 ABKB 495

Valenzuela-Sone v. Barnachea, 2023 ABKB 495, held that the Court has jurisdiction, where appropriate, to grant an interim return-child order where habitually-resident-in-Alberta children have been relocated out of Canada in breach of the Divorce Act’s relocation provisions.

By way of background, the parties were married in 1999. They have twin 16-year-old daughters. They physically separated in January 2023. The father learned in May 2023 that the mother intended to move to Chile with the twins, without telling him. The father started a divorce in Edmonton, Alberta in May 2023, which stipulated his objection to the children being relocated. The mother removed the twins to Chile in June 2023 without providing the statutory notice or alerting the father.

Section 16.9(1) of the recently amended Divorce Act requires a parent to provide 60 days notice of a proposed relocation. Section 16.91 (1) allows the receiving parent 30 days to object or apply to the court to oppose the relocation, or the relocating parent can move. The mother did not obtain court authorization or provide advance notice, regarding the relocation.

Justice Lema reviewed section 6.2 of the Divorce Act and concluded that it likely only applied to removals to another province in Canada, not outside of the country. The Court did find it had jurisdiction to make a general parenting order under s. 16.1 as the father had resided in Alberta for 14 years. The Court held that s. 16.1 could also prohibit relocation or removal of the child from a specified geographic area without consent or a court order.

The mother did not launch any Chilean parenting proceedings, so the issue of forum conveniens did not arise.

Jurisdiction to grant a return order could also be found in the court’s parens patriae authority. J. Lema cited E. v. Eve [1986] 2 SCR 388 [Supreme Court of Canada] for the proposition that: “…even where there is legislation in the area, the courts will continue to use parens patriae jurisdiction to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit.”

This decision provides a further option to a left behind parent, especially when the country the child has been abducted to is a non-Hague signatory. It helps close the gap to would be abductors attempting to take the law into their own hands, or as the court put it, engage in “self help” remedies.

Max Blitt KC
Calgary, Alberta
September 6, 2023

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