02 July 2013

Provincial Court Releases Important Decision on Relocation in Polyamorous Relationship

Judge Saunders of the Provincial Court has just released her judgment in the as-yet-unpublished case of Graf v. Beaudoin, giving us what I believe is the court's second ever decision on the relocation provisions of the new Family Law Act.

In a nutshell, the mother of the parties' two children sought an order that she be allowed to take the children and move from British Columbia to Alberta. However, there are a number of factors that distinguish this case from a vanilla interprovincial relocation dispute. First, the parties' eldest child was born during their relationship, while they were living together, and the younger child was born after they had separated. Second, the father had a more or less equal amount of time with the eldest child and a much lesser amount of time with the younger. Third, the parties were involved in a polyamorous relationship with another woman, with whom the father had also had a child, and who resided with them. Finally, the father had earlier had a fourth child with another woman, who had also lived with him and the other woman, and who he continued to parent. As you can guess, this would have made for a pretty complicated set of facts.

The first point, about the timing of the children's births, raises some interesting problems as s. 39 of the Family Law Act would have made both parties the guardians of their eldest child and neither party the guardian of their youngest child. As a result, the relocation provisions of the act would have applied in respect of the first child and not in respect of the second, since only a guardian has standing to prevent a guardian from relocating under s. 68 of the act.

The second point, about the father's time with the parties' two children, means that even if he were a guardian of both children, two different tests might apply to determine the application to relocate under s. 69 as that section prescribes one test where the guardians have a "substantially equal" amount of time with the children and another where they do not. Where guardians do not have substantially equal parenting time, the relocating guardian must prove that:
  1. he or she proposes to relocate in good faith; and,
  2. he or she has proposed "reasonable and workable arrangements" to maintain the children's relationship with the other guardian.
Where the guardians do have substantially equal parenting time, the relocating guardian must prove that:
  1. he or she proposes to relocate in good faith;
  2. he or she has proposed reasonable and workable arrangements to maintain the children's relationship with the other guardian; and,
  3. the relocation is in the best interests of the child.
The third and fourth points, which require a chart to figure out, means that the parties' two children had very close relationships with their two half-siblings and with two other adults who also played parent-like roles in their upbringing.

As I understand the judge's summary of the parties' positions, counsel for the mother argued that the father was the guardian of the eldest child but should not be the guardian of the youngest child, apparently overlooking the fact that the mother wasn't a guardian of that child either. (I  pause for a moment to reflect on how difficult it would be for the youngest child to grow up knowing that he had the same father as his sister, yet had such an unequal status. The mind boggles.) Counsel also took the view that the mother should have all parental responsibilities in respect of the eldest child, effectively leaving the mother as the sole decision-maker for both children. Counsel for the father, on the other hand, argued that the parties should be the guardians of both children and should have "shared parenting."

In any event, the judge held that the mother should not be allowed to move with the children, holding that:
  • the eldest child had been "equally parented by both parents;"
  • the father had "considerable" but not "substantially equal" parenting time with the youngest child;
  • the youngest child's "considerable exposure" to the father was enough that the relocation test for guardians with "substantially equal" parenting time was the test appropriate test to apply in respect of both children;
  • the mother's proposal to relocate was not made in good faith as her motivation was to reduce contact between the children and their father, and by extension reduce the children's contact with their half-siblings and the other women with parenting roles in their lives;
  • the mother's proposed arrangements for the children's continuing relationship with the children were not reasonable (Skype is not the best medium for a nine month old child); and,
  • the children's best interests would not be advanced by the move as the father is a "hands on and committed father."
After engaging in this analysis, the court determined that the parties should be the guardians of both children, should share parental responsibilities in respect of the children and should have equal parenting time with the children. The parties were both guardians of their eldest child as a result of the presumption of parental guardianship under s. 39(1) of the act, and could only have been appointed as the guardians of the youngest child under s. 51.

Apart from the technical issues arising under the Family Law Act as to who is and isn't a guardian, this case is of primary importance in respect of the issue that wasn't an issue. The fact that the children's parents were involved in a polyamorous relationship had no bearing at all on the court's conclusions, except as to the negative effect of the mother's proposed move in taking the children away from their half-siblings and the other adults involved in their family unit. The parties' choice of a polyamorous lifestyle was a non-issue in the decision, which is precisely as it should be. 

My thanks to my colleague Joanna Recalma for bringing this very interesting case to my attention. I will post a link to the case when it is available from an electronic resource.

8 comments:

  1. I'm having difficulty understanding why the mother wouldn't be presumed a guardian of the younger child. Did the child live with someone else entirely after its birth, and if so, wouldn't that person have some say in the matter as well as the biological parents?

    It just seems very strange to me that under the new laws a child could be born without any guardian at all and I feel like I must be missing something important.

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    1. You're right, it is strange. However, s. 39 of the act says that a parent is not a guardian unless the parent (1) lived with the other parent and the child, (2) did not live with the other parent but "regularly cares" for the child or (3) is a guardian with the agreement of the child's other guardians. The act does not say, and this is a drafting error I'm sure, that a single parent who never lived with the other parent is a guardian of her child. As a result, a child can be born with someone being presumed to be the child's guardian.

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  2. From my reading, section 39(3) of the FLA deals with a parent who has never resided with the child and the circumstances when that parent may become a guardian. The Act does not deal with the situation where a single parent is the only parent who has lived with a child (ie this is not a post-separation situation where both parents used to live with the child). It sounds like in this case, only Mom ever lived with the child and the FLA does not give Mom status as a guardian in the circumstances.

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    1. Yes, that's exactly the problem with this section of the act.

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  3. Further to the above discussion:

    (1) Did the *old* Act assign guardianship to a mother who did not live with the father at the time of the birth? (I believe it did.)

    (2) If so, do these (old Act) mothers no longer have presumed guardianship? Must they be seeking a court declaration in order to continue having guardianship of their child?

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    1. The old act said that the father and mother were joint guardians for so long as they lived together. After separation, s. 27(2)(b) of the act said that "the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders." The default assignment of guardianship wasn't about gender but about being responsible for the care of the child. However, if the parents never lived together and weren't married, under s. 27(5), the mother was the sole guardian pending an order to the contrary.

      The new act has translation provisions that interpret old orders and agreements to the new legislation. In a nutshell, if a parent had either custody or guardianship, whether sole or joint, the parent is a guardian under the new act.

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  4. In this case, does the natural mother have to apply for guardianship the same way all non guardians do? Providing the criminal record checks and so on, or is the procedure different?

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    1. This is kind of the problem with how s. 39 of the act is written. In theory anyone who isn't a guardian - including the father and the mother in respect of the second child - would have to do that. Section 51 doesn't offer any exceptions. Until the legislature fixes the problem, or a judge decides that the plain reading of the act could not possibly be what the legislature meant and interprets s. 39 differently, the only solution I see is for parents to use s. 50(a) and make a written agreement that they are both guardians.

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