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BC Child Custody and BC Child Mobility or change of residence cases often involve the need by one parent to move themselves and their child away from their existing residence- classified as BC child mobility or change of residence- to return to be closer to family support, to move away to obtain a promotion or to accept a required transfer, or to move with a new partner for one of the same reasons. What is good for one parent -and possibly for the child whose life is bound inextricably with the parent- is often the exact opposite for the other parent and possibly for the child as well. In cases where one parent is the sole custodian and the other parent has limited involvement, the decision to allow a parent with custody to move away is an easy one but those cases are rare. I often tell the courts we have a wonderful child with two great parents and that shared custody is the best possible outcome but how can you maintain maximum contact by the child to both parents if one parent and the child are allowed to move away?

In the past the court looked at the option of deciding whether the parent and child could move or whether they would be forced to remain “prometheus bound” to their present location despite lost opportunities to improve the moving parent’s life. If the court allowed a parent to move away with the child its’ result would largely sever maximum contact to the parent who remained behind in the original location.

A recent BC Court of Appeal decision has approached the problem of child mobility by adding a developing concept the writer and other lawyers have postulated for some time:

1. Consider whether both parents should remain in the same location;

2. Consider whether one parent and the child should move away;

3. Allow the parent who wants to move to move but leave the child in the care of the remaining parent-this often
forces the parent wanting to move to pick between sacrificing their career or their custody of the child;

4. Consider whether both parents can move to the new location and maintain the same regime
of care and control of the child as was in place in the old location.

I have often argued that plans to move are ill conceived and offer no clear benefit over the current regime. I have also argued- in cases where the access parent is unemployed and/or providing little positive parenting assistance or financial aid- that a move with a new partner to a new location or by one spouse to a new city with a solid financial upside that the move should proceed and the parent who has no job or a nominal income could easily move there and do as well in the new location and maintain the existing contact with their child.

The recent BC Court of Appeal decision of S.S.L. v. J.W.W., 2010 BCCA 55 set out how all four approaches must be properly considered by a trial judge in a child focussed approach.

Discussion

[21] The point of departure in Canada for any parental mobility case must be the Supreme Court’s decision in Gordon. In Nunweiler, this Court was clear that the approach set down in Gordon to a custodial parent’s variation application was to be taken, insofar as applicable, to an original application regarding children whose parenting they had been sharing.

[22] However, as the plethora of judgments that have applied Gordon demonstrate, the factors listed at para. 49 in the judgment of McLachlin J. (as she then was) provide insufficient guidance for two good parents, their counsel, and the trial court as they face the agonizing decision required in two circumstances: (1) a pre-school age child who has been in the primary care of one parent (usually the mother) where age-appropriate access is unworkable if one parent moves away (Karpodinis v. Kantas, 2006 BCCA 272, leave to appeal refused [2006] S.C.C.A. No. 318; Hanna v. Hanna, 2002 BCCA 702), and (2) a joint parenting situation where one or both parents’ needs (economic, educational or personal) are seen as requiring a change.

[23] This case falls within the second group, in some of which, as here, the only issue is the child’s primary residence, because the parents agree that joint guardianship and joint custody should continue.

[24] In my view, the court’s task in these joint parenting cases is to analyze the evidence in four possible scenarios, in this case, (i) primary residence with mother (London, Ontario); (ii) primary residence with father (Victoria, B.C.); (iii) shared parenting in Victoria; and (iv) shared parenting in London, but to do so knowing the court’s first task will be to determine which parent is to have primary residence. When the question of primary residence is evenly balanced and the court finds the best interests of the children require both parents to be in the same locale, then the court will need to choose between the shared parenting options offered by the parents, without presuming the current care-giving and residential arrangement is to be the preferred one.

[25] Proximity of parental homes will usually be in the best interests of children with two good parents. But proximity may be achieved in either proposed location. The choice of the existing location cannot be the default position. In Woodhouse v. Woodhouse (1996), 136 D.L.R. (4th) 577 (Ont. C.A.) at para. 89, Osborne J.A. observed in dissent (at para. 89):

[89] … Balancing the relevant factors is required in order to accommodate the broad post-separation spectrum of parenting arrangements with which courts will be confronted. It is essential, I think, that the process be flexible and realistic. In some cases, when the relevant factors are balanced, it will be appropriate to deny the custodial parent the right to move with the children. In other cases, asking the non-custodial parent to move may be more in the children’s best interests than requiring the custodial parent to stay. Consistent with the majority judgment in Gordon, I do not think that any one of the relevant factors should be viewed as dispositive so as to automatically determine the outcome. [Emphasis added.]

[26] Authorities in other jurisdictions reveal similar views. In U. v. U, [2002] HCA 36 at paras. 175-76, Hayne J. wrote, in concurring reasons for the High Court of Australia:

[175] When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.

[176] It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act. If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.

[Italic emphasis in original; underlining emphasis added.]

[27] See also Tropea v. Tropea, 87 N.Y.2d 727 (1996) (N.Y. C.A.); and Payne v. Payne, [2001] EWCA Civ 166 (U.K. C.A.).

[28] This approach to the evidence of both parents avoids the problem of the “double bind” described recently in Bourgeois v. Plante, 2009 PEICA 12 at para. 32:

… Various courts have cautioned that it is problematic to rely on representations made by the custodial parent that he or she will not move without the children should an application to relocate be denied. This inquiry is commonly called the “classic double bind.” If a parent responds by stating they are not willing to remain behind with the children, this raises the prospect of the parent looking after their own interests and not having the interests of the children paramount. Then, on the other side of the equation, if a parent advises the court that they are willing to forego a move if unsuccessful, this suggests that such a move is not necessary for the well being of the parent or the children. If a trial judge mistakenly relies on a parent’s willingness to stay behind “for the sake of the children”, the status quo becomes an attractive option for a judge to favour because it avoids the difficult decision the application presents. See: Spencer v. Spencer, supra.

[29] In cases like this where courts are called upon to make what one judge has called an “educated prediction” (McArthur v. Brown, 2008 BCSC 1061 at para. 161) as to the best interests of the children, based not only on evidence of their old life, but also evidence of what parents believe will transpire in their new life, the parents’ evidence should focus on all of the four possible scenarios.

[30] Such an approach takes into account the court’s inability to order a parent to stay or move and the unfairness of preferring the obstinate over the more flexible. It requires the court to set down his or her analysis of the evidence and the decision path so the parents (and ultimately the children) can understand not only the result but how one of the most important decisions in their lives was made.

[31] In evenly balanced shared parenting situations, careful and transparent analysis of the evidence and reasoning is especially important, if courts are to encourage joint parenting following separation and discourage jockeying for position by the parent in a favoured position (very often mothers because of their historic role in a family) who wants to avoid being frozen in a current location by the co-operative approach generally thought ideal for young children, particularly those not yet well bonded to their father. It acknowledges that the lives of families must accommodate change.

[32] This approach takes the focus away from the time factor that bedevils so much of family post-separation litigation. While courts have said consistently for years that the amount of time, measured in days, over-nights, and sometimes hours, is only one of many factors to be considered in determining care-giver roles, this case exemplifies how it can come to dominate a trial to the exclusion of more important child-centred evidence as to the best parenting arrangements in the circumstances as they are and can reasonably be foreseen to be. Far more significant is the role each parent has played in the children’s lives; which parent has taken primary responsibility for their health, safety, education and overall welfare; which parent deals with the mundane but necessary arrangements of their lives – clothing, haircuts, extracurricular activities, gifts for friends, doctors’ and dentists’ appointments, contact with their extended family; and which parent has the best perception of the emotional needs of the children. In sum, what it is that each parent contributes to the children, as care-giver. Only when those contributions are made clear will an understanding be reached as to what arrangements will work best for the children going forward. The analysis of the parent’s role is fundamental to the determination of a primary care-giver, whether continued shared parenting is in the children’s best interests, and where they should live.

[33] I note that in this assessment of each parent’s contributions to the care of their children, it is inevitable the court will be required to assess the resources available to each, in personal and economic terms that permit them to make those contributions, and the potential effect on those resources in each proposed scenario. As many courts have noted, this may require an assessment of a parent’s emotional and economic prospects because children’s interests are necessarily intertwined with those of their parents: Burns v. Burns, 2000 NSCA 1.

[34] Finally, this approach permits the decisions of each parent to receive the respect to which his or her parenting roles entitles them.

If you have a BC family law case involving child mobility call me, Lorne MacLean at 1-877-602-9900 toll free.