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| Shanel Belanger |
While the appeal largely sought to re-argue a fact-driven trial outcome, the court’s reasons offer two reminders: appellate deference is difficult to overcome in parenting matters, and police enforcement clauses remain exceptional tools that should be used sparingly.
Facts and issues
The parties, Mohamad Mostafa Naim and Mariam Zawawi, are separated. They have two children of the marriage; their eight-year-old son was diagnosed with autism at a young age. At a streamlined trial, Zawawi was seeking an order allowing her to relocate from Edmonton to Surrey, B.C., with both children.
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Parenting time and relocation
The Court of Appeal confirmed that “parenting and relocation orders are always founded on best interests of the children.” A key factor was the child’s autism-related needs, and which parent had been managing therapies and supports. The trial judge found that Zawawi was the parent who had ensured access to these supports and found this to be relevant to the child’s best interests. She also expressed concern about Naim’s attitude toward his son’s diagnosis, finding that “non-participation in therapies and treatment for [the child], and what appeared to be an attempt to have [the child’s] diagnosis removed, cast doubt on his ability to meet these special needs.”
The trial judge considered relocation by assessing the appropriate factors under s. 16.92 of the Divorce Act. She found that while both parties had legitimate reasons for and against the relocation, neither were particularly strong. The trial judge allowed the relocation based on the fact that Zawawi was the “clear primary parent,” with whom the children had always lived. In addition, the mother’s proposed plan with respect to parenting time gave the father more quality and extended time with the children than he had beforehand, though less frequent.
The Court of Appeal found that the trial judge had done a detailed review of the children’s best interests in a “reasonable, thorough and appropriate” manner and was entitled to deference. There were no errors of law, mixed fact and law, or material misapprehension of the facts.
Child support and imputation of income
The evidentiary record showed that Naim previously worked in sales at a car dealership with an income fluctuating between $100,375 and $163,656 from 2020 to 2023. In 2023, he left that employment to start a business in vehicle purchase and sales, claiming that he earned no income by the time of trial in 2025. Naim maintained that he could no longer work in sales because of a disability. The trial judge reviewed a report written by Naim’s physician, which recommended workplace accommodations such as ergonomic equipment, modifications to his work schedule and environmental considerations. The trial judge found that these were normal accommodations that many employers provide. It was further found that Naim had flexible hours in his previous employment, that he could easily obtain ergonomic equipment and that he did not explore any such accommodations with his employer. In light of this, the trial judge imputed income at the low end of his historical range, characterizing his employment shift as unreasonable in the circumstances, given the obligation to support his children.
Upon review, the Court of Appeal acknowledged that the trial judge relied on “scant” financial information but accepted that this was the only evidence before her. It was therefore an appropriate decision and entitled to deference. Naim attempted to make an argument of undue hardship, but the court reaffirmed the high threshold required to depart from the guidelines. The trial judge found that undue hardship was not properly advanced and concluded that Naim’s indebtedness was not reasonably incurred and was not tied to supporting the children. The claim for undue hardship failed and the Court of Appeal afforded deference to that decision.
Police enforcement
The police enforcement clause was not addressed in the trial judge’s reasons and was only added at a subsequent hearing. On appeal, both parties expressed concern about the other’s reliance on police enforcement.
The court cited previous authorities and emphasized that enforcement clauses should be used “sparingly” and should only be included “in high-conflict situations where the record establishes that a contempt application would not be a sufficient remedy for breach of a court order.” On the record before it, the court found no demonstrated need for a police enforcement and observed that it actually hindered the parties from having a healthy parenting relationship. It therefore deleted the police enforcement paragraphs from the order, while otherwise dismissing the appeal.
Key takeaways
This decision highlights how narrow the path is for appellate intervention once a trial judge has rendered a “reasonable, thorough and appropriate” decision.
- Relocation remains a best interest analysis under the Divorce Act’s relocation framework, and trial judges are entitled to deference where they have meaningfully engaged with ss. 16 and 16.92.
- Children’s special needs are an important consideration and can carry significant weight in best-interest and relocation assessments.
- Police enforcement clauses are the exception, not the norm. These should not be granted as a matter of course and should not appear in parenting orders unless there is a clear record showing that contempt is insufficient and conflict is truly entrenched.
Shanel Belanger is a content development associate with LexisNexis Canada.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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