The Applicant sought permission under Rule 14.5 to Appeal an Order issued by a Court of King’s Bench Justice sitting as an Appeal Court under section 9(1) of the Court of Justice Family Law Procedure Regulation and Rule 12.61. This Order allowed the Respondent to relocate with their two children from Alberta to British Columbia. The Applicant argued that the King's Bench Justice made errors of law in their decision.

Rule 12.71 provides no Appeal lies to the Court of Appeal from a decision of the Court of King’s Bench sitting as an Appeal Court for decisions made under the Family Law Act except on a question of law or jurisdiction, or both, with permission of a Judge of the Court of Appeal.

The Applicant bore the burden of establishing that: (i) there is an important question of law or precedent; (ii) there is a reasonable chance of success on Appeal; and (iii) the delay will not unduly hinder the progress of the Action or cause undue prejudice. The Court concluded that none of the Applicant’s proposed questions met the test for Permission to Appeal.

The Court noted that the King's Bench Justice had correctly applied the law regarding the burden of proof and had adequately considered all necessary factors in the best interests analysis. Furthermore, Justice Ho agreed with the King's Bench Justice's view on the limited utility of appealing interim Orders and emphasized the importance of moving towards a final hearing rather than prolonging litigation through Appeals. The Court agreed that there was no question that mobility Applications pose different challenges for litigants and Courts than other family law Applications, but it was apparent the King’s Bench Justice was alive to future arguments about the status quo when they urged the Applicant to move towards a final hearing as quickly as possible, rather than appealing an Interim Order. Justice Ho shared the view that it was in the parties’ and childrens’ interest to move towards a final hearing, and was concerned that an Appeal of the interim Order would unduly hinder progress of the matter.

Therefore, the Application for permission to Appeal was dismissed.