30 August 2013

Provincial Court Releases Important Decision on Relocation, Interim Guardianship, Needs of the Child Assessments

Judge Dhillon of the Provincial Court has recently published her decision in T.C. v. S.C., an important and scholarly decision which, among other things, she addresses:
  • the relocation provisions of the new Family Law Act;
  • the circumstances when it is appropriate to make an interim guardianship appointment in the context of a relocation application; and,
  • the preferred content of needs of the child assessments, prepared pursuant to s. 211 of the Family Law Act.
To summarize the facts important to this discussion, the parties began to live together in 2006 and their child was born in 2007; a few months thereafter, the parties separated. The mother prepared a separation agreement which the parties signed two or three weeks later without legal advice, and which gave the mother sole guardianship of the child (and, I assume, sole custody) and gave unspecified access to the father. 

The father began to fall into arrears of child support in 2009 following his unemployment, and the mother started a court proceeding to enforce their agreement. The father replied with a claim for joint custody and joint guardianship and a defined schedule of access. The issues of access and child support were dealt with at family case conference in 2011. 

In the meantime, the mother became involved in a new relationship with a resident of Washington State. In November 2011, she let the father know that she intended to move to Seattle and in December 2011 she married. In 2012, the mother applied to vary the father's access to accommodate her plans to move to Washington with the child; the father objected and revived his claim for joint custody and joint guardianship. The matter was finally heard, by Judge Dhillon, in mid-2013, well after the coming-into-force of the Family Law Act on 18 March 2013, and this is where things get interesting.

Interim Guardianship

The initial threshold issue concerned the status of the father; see my comments on this point in my recent post "Supreme Court Issues Important Decision on Relocation." As you will recall, the parties' separation agreement gave the mother sole guardianship of the child, and under s. 68 of the Family Law Act, only a guardian may oppose a relocation application.

The court first recited the transition provisions of s. 251(1) of the act, for the principle that someone who has access but neither custody nor guardianship under a pre-Family Law Act agreement is not the guardian of a child under the new legislation. The court then observed that under s. 39(1), parents who lived together are presumed to be guardians of their child, but under s. 39(2), parents may make a separation agreement revoking a parent's standing as a guardian. The court also noted that agreements such as these are enforceable by the court under s. 44(3) of the act.

This would normally have been the end of the matter: if the father was not a guardian, he lacked the standing to object to the mother's wish to relocate with the child. However, said the court, "the substance of his parenting particularly in the last two years since the [family case conference order] has been regular and meaningful." The court then considered the effect of s. 39(3) of the act, which allows a parent who never lived with the child to apply for guardianship if he or she regularly cares for the child, and whether this provision would allow someone who had revoked guardianship under s. 39(2) to resume his or her status as a guardian: 
"[52] ... Section 39(3) of the Family Law Act permits a non-guardian parent who has never lived with the child to establish his or her status as a guardian by showing on a balance of probabilities that he or she 'regularly cares for the child'. Given the opening words 'a parent who has never resided with his or her child...' of s. 39, this section seems to preclude a guardianship application by a parent (such as S.C.) who in fact lived with the child until parental separation after which he gave up his guardianship status by agreement or under a court order. The result is that a parent who has never lived with a child but regularly cares for him or her may be found to be a guardian under s. 39(3) but a parent who once lived with the child until parental separation but gave up guardianship status under the former Family Relations Act or under a separation agreement can not avail himself of the 'regular care provider' pathway to guardianship under s. 39(3)."
In other words, once a parent who would normally be a guardian under s. 39(1) has given up that status, he or she cannot get it back by "regularly caring" for the child under s. 39(3). This is an important point; parents must be cautious in agreeing to relinquish standing as the guardian of a child.

Such a result does come across as rather Draconian, particularly in light of the court's observations of the father's role in the child's life, and the court concluded that to let such a result stand would be inequitable in the circumstances of the case before her and its effect on the father's standing to object to the move:
"[55] ... [O]n the evidence adduced by both sides in this case, the father has played a significant role in the regular care of the child and it is my view that it would be unjust for the father not to be treated as a guardian under the Act in determining the merits of the relocation application."
The court then, on the strength of s. 216 of the act which says that the court may make an interim order whenever an application is made for an order, made an interim order appointing the father as a guardian of the child.

This point is particularly important. Under s. 51(1) of the act, any person, including a parent in the father's position, may apply to be appointed as the guardian of a child, However, s. 51(2) says that a person making such an application "must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules, respecting the best interests of the child." The required evidence is set out in SCFR 15-2.1 and PCFR 18.1 and consists of a lengthy affidavit, Form F101 in the Supreme Court and Form 34 in the Provincial Court, that requires the production of records, including child protection and criminal records checks, and certain information. 

Since completing this affidavit is a cumbersome exercise, both sets of rules allow the court to make an interim order appointing someone as a guardian, subject to the subsequent production of the required affidavit. Such was the course taken by Judge Dhillon (important bits in bold):
"[57] Accordingly, for the purposes of determining the issues in the relocation application before the court, I grant an interim order under s. 216 of the Act appointing the father a guardian of the child under s. 51(1) of the Family Law Act and under Rule 18.1(2) of the PCFR on certain terms and conditions. I do so because I find that such an order is in the best interests of the child and also in the interests of the administration of justice to permit a parent who has had a significant role in the life of a child to have relocation application considered on the basis of the parent having the status of a guardian of the child
"[58] To deny standing to the father to argue for his parental rights is to fail to consider a just and reasonable approach in this family law dispute
"[59] The terms of the interim guardianship order are that the father shall file and serve the requisite guardianship affidavit with the required attachments as mandated under Rule 18.1(1) and (4) of the Provincial Court Family Rules within 60 days of the date of these reasons. The interim order of guardianship may be finalized as a final order of guardianship by way of a desk order within the time limits under the PCFR without further hearing if the supporting materials so allow and the mother does not file an objection to the order sought within 30 days of being served with the affidavit in support of the order."
This is a terribly important conclusion and means, in effect, that even though a person is not a guardian as a result of s. 39, if that person has nevertheless had a significant role in the child's like, that person may be given interim standing as a guardian in order that the person may object to a proposed relocation, even without the required affidavit.

The Relocation Analysis

Having given the father the necessary standing to object to the mother's relocation application, the court concluded that the father did not have "substantially equal parenting time" with the child and turned to the analysis required by s. 69(3) and (4). Here is Judge Dhillon's tidy summary:
"[64] Under s. 69(4) the burden is on the mother as the relocating guardian to prove on a balance of probabilities all of the following requirements:
1. The proposed relocation is made in good faith (s. 69(4)(a)(i)), having regard to the test for good faith under s.69(4)(6) including
a) the reasons for the proposed relocation; 
b) the proposed relocation is likely to enhance the general quality of life of the child or the mother as the relocating guardian including
i. increasing emotional well being; or 
ii. financial opportunities; or 
iii. educational opportunities;
c) notice was given under s. 66; and 
d) there are no restrictions on relocation under a written agreement or an order.
2. The relocating guardian has proposed reasonable arrangements to preserve the child’s relationship with the child’s other guardians and persons with contact (s. 69(4)(a)(ii)).
"[65] Accordingly, if the relocating parent establishes the two elements of 'good faith' and 'preservation of the child’s relationship' with other guardians or contact persons under s. 69(4)(a)(i) and (ii), and addresses prima facie the factors under s. 37(2) of the Act, the proposed relocation must be presumed to be in the child’s best interests. To overcome this presumption, the burden shifts to the parent opposing the move to show that the relocation is not in the child’s best interests under s. 37: see (s. 69(4)(b) and M.K.A. v. A.F.W., 2013 BCSC 1415 at paras. 17 and 18."
The court characterized the first part of the test, the demonstration of good faith, as the burden on the moving parent of "showing that the move is not for improper purposes," citing the Court of Appeal's 2000 decision in Nunweiler v. Nunweiler, and that the move "is likely to enhance the general quality of life for the child or [the moving parent]." After reviewing the evidence, Her Honour held that:
"[76] I am satisfied that the reason for the proposed relocation is to unite a young married couple who have considered their various options and have determined that they can make a better life as a family in [Washington] instead of [British Columbia]. It is easier for T.C. to start her career in accounting in the U.S.A. than for C.B. to give up his portfolio of business clients and retrain and start a new ... career in Canada. I accept that the cost of living is lower as far as housing is concerned. I find there are no improper motivations in the mother’s desire to relocate and there is objective evidence as to a valid marriage, and employment and economic opportunities to support the mother’s subjective belief in the benefits arising from the move to [Washington]."
Turning to the question of whether the move would enhance the quality of life for the child or the mother, the court considered a number of factors, including:
  • the mother's emotional health;
  • the ability of the mother, child and her new husband to live as a nuclear family;
  • the loss of the mother's support from her extended family;
  • the standard of education in BC and Washington; including the availability of French immersion;
  • the available sports and recreational activities;
  • the relative affordability of housing; and,
  • the availability of medical health insurance coverage.
The court concluded that the mother had first part of the test, taking a rather holistic and long-range view of the evidence and the mother's future (again, important bits in bold):
"[83] I find that the mother’s reasons for the relocation are to start her married life with her husband in a community of their choice. As a general proposition, independence, pursuit of life goals, and self-actualization are generally positive factors in a young adult’s life and should translate well for the child’s general quality of life
"[84] I accept that there are reasonable grounds for the mother to believe that she and her husband can attain greater financial stability and opportunities in [Washington] and improve their general quality of life which would not be as quickly or as readily available to both of them in Canada. I accept that there are risks with unknowns, such as employment trends or future economic outlook, which would affect both countries. I do accept that once housing and employment are stabilized in [Washington], and medical insurance options are explored and settled on, in the long term the general quality of life of the child and the relocating guardian is likely to be enhanced through the relocation."
The court characterized the second part of the test, the demonstration of reasonable and workable arrangements to maintain the child's relationship with the non-moving parent, as the burden on the moving parent to:
"[86] ... show how the [non-moving parent's] relationship with the child can be preserved, not augmented or enhanced. It does not require anything other than a reasonable and workable arrangement to maintain the parent-child relationship."
Her Honour also observed that in assessing the preservation of the relationship, a certain disruption to the child's life and the child's relationship with the non-moving parent must be expected:
"[89] ... It is unrealistic to expect that parents will stay in the same community in which their parenting started for the whole of a child’s life. To expect so would be to forever bind a parent to the same neighbourhood and to the existing status quo."
The court found that the mother's plans were reasonable and workable.

The third part of the test requires the non-moving parent, to rebut the presumption that the move is in the child's best interests if the first two parts of the test have been satisfied. This took the parties in this case quite far afield in the evidence presented, which included concerns about the mother's health, a long-winded diary kept by the father and his partner and the s. 211 assessment of a family justice counsellor, as well as a factor-by-factor assessment of the child's best interests following the circumstances the court must consider set out in s. 37(2). (More on the diary and the assessment in a moment.) The court's consideration of each of the s. 37 factors follows a line of cases that have adopted this approach, including S.G. v. J.P. and L.J.R. v. S.W.R.

Taking everything into account, the court allowed the mother's application to relocate:
"[147] Having considered the facts and the law, I am not persuaded that the statutory presumption that the relocation is in the child’s best interests has been rebutted. I am therefore satisfied that the relocation of the mother with the child to [Washington] is being proposed in good faith, and that the relocation proposal takes into account [the child's] need to have his father S.C. in his life in a meaningful way. The mother has set out a reasonable and workable parenting schedule of alternating weekends between the child and his father in [British Columbia] with the mother prepared to undertake the transfer driving to a location across the border. There is no significant impediment in time or distance to the father being able to preserve and enhance his relationship with his son."
Diaries as Evidence

Another gem to be pulled from this case is the court's discussion of the diary presented by the father and his new partner. It often happens in family law matters that one or both parties will keep a running record of the various slights, incidents, arguments and frustrations that come along with parenting after separation. I would be the first to agree that a record of some nature can be helpful (a record created as close in time to the event is the most reliable memory aide), however there's a difference between noting a fact such as a missed visit with no notice, an infant returned with a sodden diaper and a fight at the McDonald's used for exchanges, and a running narrative of relative trivia laden with sour commentary and opinion. As the court in this case observed, a document like this often "reveals as much, if not more, about the authors as it does about the subjects under scrutiny."

Thankfully, the father's diary provoked the court into a short discussion on the subject. The judge quotes first from an older case from the Court of Appeal, Tobias v. Meadley:
"If I may be permitted ... to express my concern and disapproval about this relatively recent practice of parties ... to keep diaries wherein they set out in great detail each day the actual or imagined slights or misconduct they have been subjected to by the other side - presumably lest they forget such incidents prior to the trial. For some reason, the diaries never set out their own failings or misconduct! Regrettably, such diaries provide a record over which the authors can brood and, if necessary, embellish, as they engage in their introspective analysis of how they are wronged by their adversary. In my view, if one has to rely on a diary to place the alleged wrongs of the opposite parties before the Court, I would assume such allegations are in fact of little consequence and should in the main be ignored. The constant review of these self-serving diaries, however, reinforces the adversarial position adopted by each parent making the object of the litigation - an eventual resolution of the parties' problems - virtually impossible to achieve."
Next, from the more recent case of D.A.H. v. S.H., from the Supreme Court:
"In my opinion diaries can be helpful tools if a person wishes to record the events of the day or week, and their feelings about those events, both positive and negative. I accept that it can be therapeutic for a person to be recording their feelings about something for the purpose of sorting out those feelings and then putting them aside to move on, especially if these feelings are a source of frustration or anger or depression. 
"However, in my view, there is a fine line between using a diary to record feelings, both good and bad, for therapeutic reasons, and using a diary to record negative feelings as a method of dwelling on those feelings. There is nothing therapeutic about using a diary to constantly lash out at your former spouse."
You can see where this is going. This is Her Honour's conclusion on the use of such diaries.
"[115] In my view, the exercise of 'tracking' and recording the mother over a period of years and transferring suspicions to the child appears to pathologize what may fall within the normal range of acts of misconduct in a child, including his not liking certain food, or being tired, frustrated or angry or being oppositional at times. It also sets the stage for an unflattering comparison of the different parenting styles in their households. 
"[116] There is an absence of self-reflection in the diary and a failure to look on many events in a less judgmental and non-accusatory way. A day care’s failure to record or transfer the father’s name provided to it by the mother onto a 'safe list' is elevated to something far more sinister on the part of the mother. The mother’s attempts to keep all school registration options open, even after consultation with the father, is seen as intentionally subverting an agreement on schooling. When the mother adopts incentives used in the father’s household such as giving the child stickers or stars for good behaviours, or buys the child a similar toy or toothpaste that he enjoys in his father’s home, these are not seen as possible child-centered adaptations in order to provide consistency for the child between the child’s two parental households but noted in the diary as 'competing' or 'showing us up'. Parenting is difficult under the best of circumstances and this type of focus does little to advance the father’s argument about what is in the best interests of the child."
The Proper Content of Needs of the Child Assessments

Finally, the court had the opportunity to comment on s. 211 assessments as a result of the father's reliance on the recommendations made in an assessment prepared by a family justice counsellor. Needs of the child assessments, or as we used to call them "custody and access reports" or "section 15 reports," play a valuable role in family law proceedings. They give the court and the parties the neutral opinion of a third-party expert as to the optimal arrangements for the children, and are extremely helpful when the parties' evidence is contradictory... as it usually is in family law matters.

However, the preparation of these reports calls for a deft touch and some care. The assessor must consider the best interests of the children in relation to the three broad subject areas set out in s. 211(1) without traipsing into the judge's domain:
  1. the needs of the child in relation to the dispute;
  2. the views of the child in relation to the dispute; and,
  3. the ability and willingness of a party to a the dispute to satisfy the needs of that child.
Moreover, if there is a set of principles on a particular issue developed by the case law, the assessment must take into account and apply those principles.

You can get the sense that something was amiss from the quote the court takes from the assessment before she even begins her analysis. Says the assessor:
"Although T.C. has developed a comprehensive plan to move forward with her life with C.B. and wants to relocate to the United States, the move is not in the best interests of the child. T.C. and C.B. may need to canvas the resources available to them to either live as a family unit in Canada and maintain [the child's] ties to his community, or move to the United States without him."
That's pretty much telling the judge what's in the best interests of the children, well beyond the assessor's task of assessing and recommending, and is really the judge's job to determine.

Although the court offers an excellent analysis of the "in the round" approach to mobility cases developed by our Court of Appeal, and how the assessor failed to apply those principles, what I found most valuable was the court's commentary on the appropriate content of such assessments and the appropriate response of the court when the assessment falls short:
"[142] It is preferable for the author of a s. 211 report to note the parenting roles, significant relationships, and other factors relevant to the best interests of the child in his or her present location, and what may be available or proposed for the new location, and to set out a list of recommendations for parenting in either location and with either parent. In my view, it is not appropriate to decide the ultimate question of whether permission to relocate should be granted and to suggest the recommended orders of parenting for the court, including a transfer of custody, on the conclusions drawn by the author of the report. 
"[143] I find that although the background information collected by [the assessor] is well presented and very helpful, I can not place great weight on the inferences she drew from that information or her recommendations concerning the changes to the parenting orders to be made in this case. 
"[144] I have carried out an independent analysis having regard to the evidence at trial and have come to a different conclusion than recommended by [the assessor]. I have considered the submissions of the parties on where and in whose care the best interests of the child lie, following the tests under s. 69(3), s. 69(4)(a) and (b), and s. 37(2) of the FLA."
This judgement is well-written and provides a highly accessible overview of the areas of the law it covers. This judgment, and that of Mr. Justice Betton in L.J.R. v. S.W.R., provide the most definitive discussions of the relocation provisions of the Family Law Act thus far and should be read together.