05 August 2013

Supreme Court Releases Important Decision on Relocation

There has been a flurry of judgments published over the last two or three months on the relocation provisions of the Family Law Act. (I suspect that some people decided to wait until the new act was in force before making an application to move, because I don't recall a similar flurry of judgments on relocation being released in so short a time.) In this post, I will review a critical new case from our Supreme Court,  L.J.R. v. S.W.R., that I suspect that is going to become the new go-to case on relocation claims. For other recent cases, click on the "mobility" label at the bottom of this post.

In a nutshell, the parties in this case had been involved in a brief relationship that produced a child in 2010. The father maintained contact with the child and pursued a meaningful relationship with her, to the point of moving closer to the child from another province, at the suggestion of the mother, in order to make his contact with the child easier and the parties wound up sharing the child's time on a week-on/-off basis. In 2012, the mother reconnected with an old flame whom she wound up marrying in 2013. As the mother's new husband lived and worked in Tennessee, the mother applied to take the child and move there.

The mother's application for an order that she be permitted to change the residence of the child was partially heard in late 2012. At that time the court made only an interim order concerning the father's time with the child over Christmas and preventing the mother from removing the child from the province. The rest of the mother's application was adjourned, and was back before the court, before Mr. Justice Betton to be precise, in the summer of 2013, with one or two matters concerning the father's time with the child being dealt with along the way. Because the parties had never married, the Family Law Act was the law governing the matter.

To begin his analysis, the judge made two important observations. Firstly, he noted that the parties agreed the father was a guardian of the child even though the parties never lived together, I assume because he had "regularly cared" for the child, under s. 39(3)(c) of the act. Secondly, he concluded that the father did not have "substantially equal" parenting time with the child. Both of these facts are critical to the analysis that followed, and, if I could be so bold as to suggest, every analysis of a relocation issue must begin with a determination of these two issues:
1. Is the party objecting to the move a guardian? 
3. Does the objecting guardian have substantially equal parenting time with the moving guardian?
(My choice of numbering will be explained in a moment.) The first issue is important as a person does not have standing to object to a guardian's application to relocate unless the person is also a guardian. The second issue is important as the test to determine an application to relocate under s. 69 of the Family Law Act changes depending on whether the objecting guardian has substantially equal parenting time or not.

Next, the judge considered whether there was an agreement or order in place governing the child's parenting arrangements. This too is a critical issue, as there are in fact two basic tests to determine a guardian's wish to relocate, one under s. 46(2) where there is no agreement or order, and another under s. 69 where there is an agreement or order. Here, then, is the third issue which must begin every analysis of a relocation claim:
2. Is there a written agreement or a court order respecting parenting arrangements?
The father's position on this issue was that there was no agreement or order in place, as the only orders made to the date of the hearing were interim in nature. The court held that the act "makes no distinction between interim and final orders in relocation," and said:
"[53] I conclude that the analysis of a given order or agreement must be restricted to the subject matter of that order or agreement - nothing more and nothing less. The legislature could easily have distinguished between interim and final orders or provided some additional criteria for application of [s. 69], but it did not. Applying the modern approach to statutory interpretation does not support the imposition of any other qualifying characteristics to an order beyond the legislative requirement that such an order or agreement applies to the child in question and respects parenting arrangements or contact with the child. 
"[54] It would be wrong, in my view, to say that some interim orders of limited scope and/or duration preclude the application of [s. 69] by their form alone."
With this conclusion about the law in hand, the court determined that the interim orders made earlier in the proceeding were "orders" within the meaning of ss. 46(1) and s. 65(2), and accordingly the test to determine the mother's application was the test set out in s. 69 not that found in s. 46(2).

The court then looked at s. 69 to determine the factors that must be taken into account to determine the relocation application. The important parts of s. 69 say this:
(3) Despite section 37(1), the court, in making an order under this section, must consider, in addition to the factors set out in section 37(2), the factors set out in subsection (4)(a) of this section. 
(4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,
(a) the relocating guardian must satisfy the court that
(i) the proposed relocation is made in good faith, and 
(ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and
(b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.
(5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court
(a) of the factors described in subsection (4)(a), and 
(b) that the relocation is in the best interests of the child.
(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:
(a) the reasons for the proposed relocation; 
(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; 
(c) whether notice was given under section 66; 
(d) any restrictions on relocation contained in a written agreement or an order.
Subsection (3) says what factors the court is required to consider; s-ss. (4) and (5) are the two main tests that apply; and s-s. (6) provides some factors that the court must consider in determining whether an application to relocate is made in good faith. This is the judge's concise summary of s-ss. (3), (4) and (5):
"[60] ... Thus, the best interests of the child as described in s. 37 must be considered, but section 69 requires that other factors also be considered as well. 
"[61] Sections 69(4) and (5) create an evidentiary or procedural distinction depending on whether the parents have substantially equal parenting time. If they do, the burden of demonstrating whether the relocation is in the best interest of the child is on the relocating guardian. If they do not, the burden is on the other guardian to demonstrate a move is not in the best interests of the child. In either situation (if the s. 69(4)(a) conditions are met by the relocating guardian). Under s. 46, no such onus is specifically set out, and the section proceeds simply on the basis of determining what is in the child’s best interest."
Since the parties did not have substantially equal parenting time, the test set out in s. 69(4) applied. Here is the judge's summary of the s-s. (4) test:
"[66] ... [If] the applicant can satisfy the court that ss. 69(4)(a)(i) and (ii) have been satisfied, there is a presumption pursuant to the terms of the [Family Law Act] that the relocation is in the best interests of the child and should thus be granted, unless the respondent satisfies the court otherwise."
4. Has the moving guardian proposed reasonable arrangements in light of the proposed destination?

The court began its analysis with the s. 69(4)(a)(ii) factor: had the mother proposed reasonable arrangements to preserve the relationship between the child and her father? The court said that any consideration of this factor must "be made on the basis of the location in issue." In other words, the arrangements that suit a move from Maple Ridge to Vancouver will logically differ from the arrangements that would be appropriate for a move from Maple Ridge to Calgary.

5. Does the moving guardian seek to move in good faith?
The court then assessed the s. 64(4)(a)(i) factor: did the mother propose to move in good faith. The court summarized the considerations to be taken into account under s. 69(6) to assess good faith this way:
"[71] Good faith is a subjectively held state of mind. Yet, some of the above characteristics are undoubtedly objective. I find that to the extent a factor listed in s. 69(6) is objective, a positive or negative finding suggests an inference that the relocating guardian either possessed or did not possess the required subjective good faith. 
"[72] The language of s. 69(6) makes it clear that the above four considerations are not an exhaustive list, but those considerations do establish a tone for the concept of good faith in ... relocation proceedings. They are, in my view, consistent with a common understanding of the phrase."
The court then looked at each of the four factors set out in s-s. (6), with the caution that it may not be necessary to review all four factors in all cases.

The court said that analysis of the first factor, the reasons for the proposed move, involved both both subjective and objective considerations: 
"[73] ... The reasons for the proposed relocation have both a subjective and objective dimension. Subjectively, it is easy to imagine examples where the reasons may not be indicative of good faith - for example, where a guardian is found to be making a move to frustrate another guardian’s involvement with the child. Objectively, I find that the court can consider the reasons for the move based on the facts before it. The objective reasonableness or lack thereof of the reasons for a move can weigh in favour of or against the subjective good faith of the relocating guardian. An unreasonable move suggests the relocating guardian is not acting in good faith. ..."
On the second factor, whether the move would enhance the child's and guardian's quality of life, the court said that an objective analysis is required:
"[73] ... This portion of the analysis of good faith is more objective. For example, a proposed relocation which is objectively unlikely to enhance the general quality of life of the child directs a court toward the inference that the relocating guardian did not propose the relocation in good faith. ..."
The third factor, whether notice of the proposed move was given as required by s. 66 obviously requires an objective analysis.

The court interpreted the fourth factor, whether there are any restrictions on moving in an order or agreement, as involving both subjective and objective considerations:
"[73] ... [The] core consideration when weighing this factor is whether the relocating guardian has complied with the terms of any agreement or order binding on him or her relating to the family dispute. Failure to comply with a term may suggest the inference that the relocating guardian is not acting in good faith. ..."
The factual, objective question is whether an order or agreement exists that imposes restrictions on a guardian's ability to relocate. The subjective question involves the intention of the moving guardian to comply with the restrictions. As the mother in this case had already "effectively relocated" to Tennessee, the court concluded that she had not complied with the 2010 order.
6. Is the proposed move in the best interests of the child?
Finally, the judge returned to s. 69(3) which requires the court to consider the best interests factors under s. 37(2) of the act as well as the tests set out in s. 69(4) and (5):
"[77] The language used in s. 69(4) is very clear on its face. The relocating parent 'must satisfy the court' of the two factors in subsection (4)(a). If, and only if, those are satisfied, the court must consider whether the relocation is in the best interests of the child. 
"[78] Section 69(3) is equally clear in saying that, 'despite s. 37(1) ... the court ... must consider, in addition to the factors set out in section 37(2), the factors set out in subsection (4)(a) of this section'. 
"[79] Reading s. 69(5) serves only to confirm the legislative intent by distinguishing between s. 69(4)(a) factors and best interests and requiring the former to be established independently of the latter. 
"[80] The proper and necessary interpretation of s. 69 is that where the applicant has failed to satisfy the court that the proposed relocation is made in good faith, the [Family Law Act] dictates that the application should be dismissed. Such a result, however, would preclude an actual consideration of the best interest of the child as articulated in s. 37(2), and that is inherently flawed. 
"[81] A failure to establish good faith and/or the proposal of reasonable and workable arrangements to preserve relationships will suggest the proposed relocation is not in the child’s best interests. However, that will not always be determinative. It may be that in other cases, a relocating guardian will not act in good faith, but the proposed relocation is nevertheless in the best interests of the child. 
"[82] Nevertheless, there are sound reasons why the requirements of s. 69(4)(a) should be viewed as preconditions to the remainder of the analysis. If a relocating guardian is incentivized to act in good faith, they may be more likely to resolve a relocation issue outside the courts. A guardian should not be able to act in bad faith and have that conduct ignored in determining a relocation application. Guardians must know that there are consequences for non‑compliance with the statutory requirements."
Having reached this conclusion, the court then turned to an analysis of the s. 37(2) best interests factors by looking at each factor in turn in light of the particular facts of the case.

In my view, the critical points from this important decision are these:
  1. When asking whether there is "an order or agreement" on parenting arrangements to determine whether s. 46 or s. 69 applies, whether the order or agreement is interim in nature is immaterial. What matters is whether there is an agreement or order on the issue.
  2. Whether a guardian has proposed "reasonable arrangements" for a child's relationship with another guardian or a person with contact depends on the place the guardian proposes moving to.
  3. Assessing the good faith of the moving may require a consideration of each of the four factors set out in s. 69(6). The factors involve both subjective and objective considerations.
  4. After the tests set out in s. 69(4) and (5) have been assessed, the court must then, under s. 69(3), evaluate the proposal to move in light of the best interests of the child, determined by reference to each of the factors set out in s. 37(2).
Here is my summary of the procedural steps required to address an application to relocate.

Step 1:
Is the party objecting to the move a guardian? If yes, continue. If no, the party lacks standing unless appointed as a guardian of the child.

Step 2:
Is there a written agreement or a court order respecting parenting arrangements in place? If yes, proceed under s. 69. If no, proceed under s. 46. Remember that it is immaterial whether the agreement or order is interim or final in nature.

Step 3:
Assuming you are proceeding under s. 69, does the objecting guardian have substantially equal parenting time with the moving guardian? If yes, apply the test under s. 69(5). If no, apply the test under s. 69(4).

Step 4:
Has the moving guardian proposed reasonable arrangements to continue the child's relationship with other guardians and persons with contact? If yes, continue to the issue of good faith. If no, the application must be rejected. Remember that the reasonableness of the proposed arrangements depends on the proposed destination.

Step 5:
Does the moving guardian seek to move in good faith? If yes, continue to the issue of the best interests of the child. If no, the application must be rejected. Remember that the determination of good faith may require an assessment of each of the factors set out in s. 69(6) and that these factors may entail both subjective elements concerning the guardian's intentions and objective elements concerning the facts of the case.

Step 6:
Is the proposed move in the best interests of the child? If yes, the move should be allowed. If no, the application must be rejected. Remember that the determination of the child's best interests requires an assessment of each of the factors set out in s. 37(2).

As always, my thanks to my colleagues Agnes Huang and Thomas Wallwork for (separately) bringing this case to my attention.

2 comments:

  1. Hi J-P,
    In your blog post you state that the judge found that the father did not have substantially equal parenting time. At paragraph 36 of the judgment, the judge states "It is also clear that the claimant and the respondent share substantially equal parenting time." I could not find any other statement in the judgment that contradicts this statement...?

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    1. I took that from paragraph 65, where the judge says "the respondent and applicant do not share substantially equal parenting time" and concludes that s. 69(4) rather than s. 65(5) should apply.

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