31 March 2012

Court of Appeal Releases Important Decision on Mobility

The Court of Appeal has just released a very important decision on mobility issues which will be required reading for anyone involved with such a problem, at least until the Family Law Act comes fully into force. In R.E.Q. v. G.J.K., the court provides an important review of its key mobility decisions over the last ten years and offers a stinging critique of the convoluted manner in which the law has evolved following the Supreme Court of Canada's landmark decision in Gordon v. Goertz.

In R.E.Q., the father had successfully fought off the mother’s attempt to move with the child from Maple Ridge, British Columbia to Calgary, Alberta at trial. The mother appealed this decision on the grounds that:
  • “where the children live primarily with one parent who wishes to move for reasons that are not ‘exceptional’, it is an error in principle for the court to refuse to permit her to move with the children;” 
  • “the [trial judge] had given ‘inappropriate weight’ to the desirability of maximum contact with both parents and insufficient weight to the lack of economic necessity for the move, failing to give due respect to [the mother’s] views;” and,
  • “trial judge had taken a ‘status quo approach’ which had not allowed consideration of the case ‘in the round’ … [and] it would be ‘unfair’ to deny [the mother] the ability to relocate in Alberta with the children.”
In a somewhat surprising turn of events, given the statistics on the Court of Appeal's treatment of such matters over the last decade and a half, the mother's appeal was rejected.

As usual, I won’t go into the facts in this case but will instead survey the court’s discussion of the law on mobility applications and comments on the views of Rollie Thompson, a much-respected academic who has written extensively on mobility issues. I’ve removed cites and put the particularly important bits in bold.

The Standard of Review of Mobility Applications
“[33] … The Supreme Court of Canada has said that the standard of review is a high one, i.e., that in family cases as elsewhere, an appellate court may not interfere with the exercise of discretion of a trial judge in the absence of a material error … it is not for an appellate court to re-weigh the evidence or to interfere on the basis that the appellate court would give more weight than the trial judge did to one factor or another …

“[34] Nevertheless, it is a striking fact that in recent years there have been many successful appeals taken from trial judgments in ‘child mobility’ cases, at least in this province. It may be useful to review some of those cases before considering counsel’s submissions as to how they apply to the facts before us.”
The Inevitable Review of Gordon v. Goertz
"[36] … The Court stated that in an application for the variation of a custody order, a two-stage inquiry is mandated − first, into whether a material change has taken place in the child’s situation, and if so, a consideration of the merits, based on the best interests of the child in the new circumstances, and considering all factors relevant to those interests. …

“[37] The majority went on to observe that unless the custodial parent’s reason for wanting to move is ‘connected’ to his or her parenting ability, it should 'not enter into the inquiry'. It was acknowledged that in both ss. 16(10) and 17(9) of the Divorce Act, Parliament mentions maximum contact between the child and both parents as a factor to be included in assessing the child’s best interests. McLachlin J. emphasized, however, that this principle, while mandatory, was not “absolute”…

“[38] … In summary, the factors to be considered by a court when confronted with an application for a change in a custody or access order were said to include, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
“[39] Ultimately, McLachlin J. stated, the importance of the child’s remaining with the parent to whose custody he or she has become accustomed must be weighed against the continuance of full contact with the child’s access parent, extended family and community. ‘The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new’?”
Gordon v. Goertz in British Columbia
“[41] This court has purported to apply Gordon v. Goertz in a number of cases that were cited to us by counsel in the case at bar − most recently, Nunweiler v. Nunweiler; Falvai v. Falvai; S.S.L. v. J.W.W.; and Hejzlar v. Mitchell-Hejzlar. I do not intend to recite fully the facts of each here, but only to note the principles applied in context. …

“[44] [In Nunweiler], the trial judge was found to have erred in inferring an improper motive to the mother for the move without an adequate evidentiary basis. … Instead, he had focused on the economic interests of the father, failing to give ‘overt consideration’ to the mother’s financial circumstances and to access difficulties that would have arisen if the mother had chosen to return with the child... Further, the trial judge had given insufficient consideration to the benefits for the child of life in [the proposed destination], where she had been living for the previous 12 months; the stable relationship between her mother and her new partner; and the effect on the child of the disruption that would be caused by moving her from her (new) friends and school in [the proposed destination]. Thus this court concluded that the trial judge’s order had been made on a ‘flawed factual basis’ and without correctly applying the principles in Gordon v. Goertz. ...

“[45] In Falvai, … this court held that the trial judge had erred in failing to adopt a ‘blended approach’ to determining the issue of the mother’s proposed move of the child ‘in the context of the parties’ competing custody claims.’ …

“[46] The Court in Falvai also observed that the approach suggested in Nunweiler did not create a two-step analysis, or change the conventional approach to determining custody ‘in an initial application, where there is no pre-existing determination that the relocating parent is the one best suited to meet the child’s needs’. The Court advocated a ‘balancing of all relevant factors, including a parent’s proposed move with the child to a new community’. In the result, it found that … given the mobility of modern society, permanent conditions restricting the movement of a custodial parent should not be imposed ‘except in the rarest of cases’. …

“[49] [In S.S.L. v. J.W.W.] … the trial judge was found to have fallen into ‘what is an easy error in difficult parental mobility cases, to prefer what is seen as the status quo. where the parent seeking to move indicates that he or she will not move without the children. In the analysis of Huddart J.A. for the Court: …
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 … ; (ii) primary residence with father…; (iii) shared parenting in [the father’s city]; and (iv) shared parenting in [the mother’s city], 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. …
“[50] As well, the Court emphasized that ‘child-centred evidence’ as to the ‘best parenting arrangements in the circumstances as they are and can reasonably be foreseen’ to be is of particular importance in child mobility cases. …

“[53] [In Hejzlar, this] court again allowed an appeal from the lower court’s order and permitted the mother’s proposed move to take place. …

“[54] The Court found that the trial judge had placed undue weight on the mother’s testimony that she would not move to Edmonton without the child. Saunders J.A. continued:
... I recognize that there may be many situations in which a child’s best interests are served by a court refusing a move. However, a full consideration of that possibility requires more than exploration of the potential effect of the proposed move upon the relationship between the child and non-moving parent. S.S.L. v. J.W.W. was a case in which this court said there were four possibilities that should be considered. While this is a different case, this case required at least consideration of the potential effect of refusing the move upon the relationship between the child and the moving parent, assuming the move will occur. In other words, it is consideration of the possibilities in the round, and not from one perspective only, that is required. The subtle, and troublesome, consequence of approaching the question with preference for the status quo is that the fully rounded analysis does not occur. ... "
The Confounding of Gordon v. Goertz

Read these extracts especially carefully; the court criticizes the current state of the law on mobility issues and, with much respect, urges the Supreme Court of Canada to consider the matter again.
“[57] The untrained reader of the foregoing appellate decisions might be forgiven for concluding that the Court of Appeal came dangerously close to reweighing the evidence and substituting its own discretion for that of the court below … The reader might also be forgiven for questioning whether the complex and convoluted reasoning now required of a trial judge in cases of this kind is in fact consistent with the overarching principle that as stated in Gordon v. Goertz, the best interests of the child are not merely ‘paramount’ in mobility cases but are ‘the only consideration.’ In my respectful view, the reasoning in Gordon v. Goertz is in danger of being distorted into a set of ‘rules’ that undermine this principle. The Court’s statement that the views of the custodial parent are ‘entitled to great respect’ has evolved into a de facto presumption in favour of the wishes of the custodial parent – notwithstanding the fact that the majority of the Court in Gordon v. Goertz rejected the imposition of a presumption. (Professor R. Thompson has referred to this as the unspoken ‘primary caregiver presumption’...) As seen above, the de facto presumption has been reflected in suggestions that the ‘rights’ of custodial parents are inconsistent with restrictions on their mobility with the children, and that such restrictions should exist only in the ‘rarest of cases’.

“[58] … It is not clear how the 'great respect' principle should work where both parents are custodial parents. Further, the prohibition in this province and elsewhere against placing the custodial parent in a ‘double-bind’ by inquiring at trial whether he or she will move without the children, seems to have made consideration of the status quo impermissible as a possible outcome ‒ even though this court has also said that the best interests of the child must be considered ‘in the round’ (Hejzlar) or in the context of all four possible scenarios (S.S.L.). Finally, the stricture (from Gordon v. Goertz) against considering the relocating parent’s reasons for wishing to move except where they are relevant to his or her ‘ability to meet the needs of the child’ has proven unworkable, as trial judges are reluctant to approve the disruption of children from familiar surroundings and relationships for reasons that, while not improper, may be selfish or trivial. As Professor Thompson notes, the prohibition is either simply ignored altogether or is circumvented by invoking the bromide that ‘what is good for the custodial parent is good for the children.’

“[59] It may, with deference, be time for the Supreme Court of Canada to reconsider whether cases of this kind are to be determined with reference only to the children’s best interests or whether what I suggest is an unspoken factor in mobility cases ‒ the 'mobility rights' of custodial parents ‒ are also a proper consideration. … Canadian courts require guidance as to how such rights, if rights they be, are to be weighed against other factors relating to children’s best interests.”
Madam Justice Newbury's decision is a masterful piece of judicial writing and efficiently surveys the evolution of the case law on mobility leading to the current predicament, most recently and most eloquently discussed by Rollie Thompson in his 2011 paper Where is BC Law Going? The New Mobility.

For a discussion of Professor Thompson's paper, see my post "Prof. Thompson Digests BC Law on Mobility."