Ruling says stay will maintain instability in current parenting arrangement
The Alberta Court of Appeal has dismissed a mother’s application to stay an order requiring her to bring back two children to Alberta from Ontario upon weighing all the relevant factors, including the prevailing consideration of the children’s best interests.
In HDO v MDF, 2025 ABCA 367, the parties married in 2005 and separated in 2018. The respondent father acted as the primary caregiver of their two children, aged 16 and 13, following the separation.
The parties were embroiled in lengthy, complicated, and bitter proceedings. The court tried to help them proceed toward trial and resolve their disputes by issuing nearly 30 interim orders since March 2019.
The appellant mother obtained three emergency protection orders (EPOs) against the father in February 2023, October 2024, and February 2025, which the court revoked in the following months.
On July 20, 2023, the parties executed an interim consent order in the children’s best interests. The order addressed parenting time, with the father having primary care and the mother having parenting time on alternating weekends, as well as notice requirements for any relocation or change in residence.
The father has not seen the children since October 2024, the same month that the mother secured the second EPO. An order issued last January provided rules for video calls and reiterated the notice requirements in the July 2023 order.
A Practice Note 5 process led to a report finding no substance in the mother’s claims of the father’s sexual abuse of the children.
In July, without notifying the father, the mother took the children from Alberta to Ontario to visit her parents. They have remained in Ontario since.
On Sept. 3, a chambers judge required the mother to return the children to Alberta by Sept. 10, at which point she could maintain primary parenting of them. The judge determined that the mother breached the January order when she brought the children to Ontario.
On Sept. 26, the chambers judge ordered the mother to return the children to the father as soon as possible.
On Oct. 3, in emergency chambers, the father applied to hold the mother in contempt of the Sept. 3 order and return the children to Alberta, while the mother appealed the Sept. 3 order. On Oct. 7, the mother applied to stay the Sept. 3 order.
After a contempt hearing on Oct. 8, a chambers judge found the mother in contempt of the Sept. 3 order, granted her leave to apply for a temporary relocation of the children to Ontario, and stated that the children should meet their father online on alternating weeks.
Stay denied
The Court of Appeal of Alberta refused to stay the Sept. 3 chambers order requiring the mother to bring back the children from Ontario, upon seeing no reason why the children could not and should not return to Alberta.
The appeal court acknowledged that some of the mother’s arguments might comply with the low threshold for an arguable appeal. However, the appeal court held that her application should fail when considering the factors of irreparable harm and the balance of convenience.
The appeal court accepted that the children, who did not oppose returning to Alberta while remaining in their mother’s care, were doing well in their online classes in an Alberta school and established online friendships.
However, considering the factors in s 16(3) of the Divorce Act, 1985, the appeal court ruled that issuing a stay would not serve the children’s best interests and would instead maintain the instability in the present arrangement.
On the other hand, the appeal court held that denying a stay would safeguard the stability of the children’s education and permit them to continue their online friendships in person.
The appeal court pointed out that the mother – deemed in contempt of the Sept. 3 order’s clear direction to bring the children back to Alberta – had been breaching the operative parenting order since 2024.
The appeal court noted that:
- The December 2024 order affirmed the July 2023 order, which granted the father significant parenting time in line with the status quo leading up to its issuance
- In December 2024, the court vacated the second EPO
- Last January, the mother discontinued her appeal of the order vacating that EPO
The appeal court concluded that the mother failed to prove that abiding by the Sept. 3 order would cause real and significant harm to the children. The appeal court noted that the Practice Note 5 report saw no substance in the mother’s abuse allegations against the father.
