09 July 2011

Prof. Thompson Digests BC Law on Mobility

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

On 8 July 2011, Professor Rollie Thompson, one of Canada's leading academics in family law and a co-author of the Spousal Support Advisory Guidelines (PDF), presented a summary of the recent British Columbia case law on mobility issues at a conference organized by the BC Continuing Legal Education Society.

Mobility issues are among the most difficult problems family law lawyers are called upon to address, and come up when one parent wants to take the children and move away from the other parent. Small moves really aren't the issue; what I'm talking about are moves out of town which will have a serious impact on the non-moving parent's ability to spend time with the children. The problem with moves like this is that while the moving parent usually wants to move for important reasons (to take a new job, to go to a new school, to be with family, or to live with a new partner), the move will have an inevitable impact on the non-moving parent's relationship with his or her children, and it can be extremely difficult to balance the moving parent's legitimate interest in moving with the non-moving parent's equally legitimate interest in maintaining a relationship with the children.

A 1996 case of the Supreme Court of Canada, Gordon v. Goertz, was supposed to provide guidance about when moves should be allowed and when they shouldn't, and the case set out a helpful list of factors supporting moves and factors opposing them. However, in the years which followed some cases interpreted the Gordon factors one way and some interpreted them another way, with the result that the case law has become as useless hodgepodge and Gordon can be made to say anything you want it to say. In fact the only useful thing you can get from the case law on mobility is the fact that in a narrow majority of cases the parent with primary care of the children gets to move.

This is tremendously difficult for family law lawyers, as it means that we can't give our clients meaningful predictions about whether a move will be allowed or not. All we can offer is a statistical observation which says nothing about what will happen in their particular circumstances.

This is where Professor Thompson's presentation comes into things. The last time I heard an analysis of post-Gordon cases was in 2003 or 2005, and the conclusion the speaker reached was that in something approaching 60% of Canadian mobility cases, the parent with primary care was able to move. Professor Thompson took a look at British Columbia mobility cases over the last few years and provided a number of observations about trends in this province:
  • The parent with primary care is able to move about 50% of the time in Canadian cases these days, down from 60%, but moves are permitted about 57% of the time in BC.
  • Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision.
  • Moves were refused in 8 of 9 cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases.
  • Moves were allowed three-quarters of the time when the children were aged 0 to 5, declining to about half the time for children aged 6 and older.
  • Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.
  • The rule from Gordon that the reasons for the move should not be canvassed is almost universally ignored, and applications to move will not succeed when the application is made in bad faith or for trivial reasons.
Bearing in mind that statistics can only give you information about general trends and not about what the decision will be in a particular case, it seems that applications to move will most likely succeed when:
  1. the child is of pre-school age;
  2. the parent wishing to move has clearly been primarily responsible for the care of the children;
  3. the application is made after trial; and,
  4. the application is made for a good reason.
On the other hand, applications to move will most likely fail when:
  1. the parents share the children's time equally or near-equally; and,
  2. the application is made in bad faith or for a bad reason.
You can get a bit more information about mobility issues from my website.