Potts v Marschlik dealt with an appeal of a June 2023 summary trial decision, which addressed parenting time, relocation, and the best interests of the child.
The summary trial was ordered to determine the application for primary care of the child, filed by the respondent, Potts. The appellant, Marschlik, sought to retain primary care and permission to relocate the child from the Sylvan Lake area to Calgary. She submitted that she required relocation to Calgary because it was where her supports were located and therefore, it was in the best interests of the child. The respondent’s application was granted, and the appellant’s was dismissed with costs of approximately $42,000.
On appeal, Marschlik asked the court to set aside the final parenting order and reinstate her as the primary parent, or in the alternative, order a 50/50 shared parenting. She disagreed with the trial judge’s assessment of the best interest of the child. Marschlik argued that the trial judge assumed she was moving to Calgary, a plan she claimed to have now abandoned.
The appellant court held that there was no reviewable error that justified interfering with the trial judge’s parenting decision. The parenting order was granted on the assumption the appellant was moving to Calgary, and there was no evidence submitted indicating that she had abandoned this plan. In her affidavit sworn on October 1, 2022, and throughout the summary trial, Marschlik proceeded as though she intended to move to Calgary. Her counsel had also submitted a mobility application. In consideration of the forgoing, the trial judge’s finding of fact and his credibility assessment was upheld.
This decision engages several elements essential to a family law practice, most importantly that the court will uphold the best interests of the child above a parent’s relocation plans. For a more fulsome review of the court’s reasoning in Potts v Marschlik, read the complete decision here.
