Provincial Court Releases First Decision on Relocation

Judge Morgan of the Provincial Court gave his reasons in S.G. v. J.P. at the end of May in what I strongly suspect is the first decision on relocation under the Family Law Act. The new act's provisions on relocation are important as they attempt to impose some order on an area of family law that has been a source of abiding uncertainty ever since the 1996 Supreme Court of Canada decision in Gordon v. Goertz.

Under Part 4 Division 6 of the Family Law Act, a guardian who wishes to relocate, with or without the child, must give 60 days' written notice of the his or her plans to relocate. If another guardian files an application to prevent the move, two tests are set out at s. 69 to guide the court. Where the guardians do not have "substantially equal" parenting time with the child, if the guardian proposing to move can establish that

1. the move is proposed in good faith, and
2. he or she has proposed reasonable arrangements to preserve the child's relationship with the objecting guardian,

the move is presumed to be in the best interest of the child unless the objecting guardian proves otherwise. Where the guardians have substantially equal parenting time, the moving guardian must prove that

1. the move is proposed in good faith,
2. he or she has proposed reasonable arrangements to preserve the child's relationship with the objecting guardian, and
3. the move is in the child's best interests.

Hopefully this test will provide some certainty to this area of the law.

In S.G., the parties had substantially equal parenting time with their ADD-afflicted daughter, and the mother proposed to move with the child from the Cariboo to the Lower Mainland. In his decision, Judge Morgan provides a succinct review of the relocation provisions of Part 4 Division 6 and the best interests factors at s. 37, and engages in a step-by-step review of the s. 69 test.

First, the judge held that the mother had met the good faith element:

[43] I am satisfied that the proposed relocation is made in good faith. [The mother] is not motivated by a desire to restrict or decrease [the father's] parenting time, or by any other inappropriate reasons. Her original primary motivation for the relocation was to support her husband's once-in-a-lifetime opportunity to play for [a team]. [The child's stepfather] believes that when his athletic career is over, his unique experience will assist him in obtaining employment... 

[44] [The mother] current primary motivation to relocate is to obtain assistance for her son ... in overcoming his [speech impairment]. The specialized assistance he needs is not available to him in [the Cariboo], but is available to him in [the Lower Mainland]. 

[45] Another valid motivation for the move is [the mother's] desire to take a Medical Office Assistant program that is not available to her in [the Cariboo]. The program is 11 months and she believes it is flexible enough to allow her to study when [the stepfather] is home with the children.

Second, the judge held that the mother had proposed a reasonable arrangement to preserve the child's relationship with the father:

[46] I am also satisfied that the mother's proposed parenting time schedule is a reasonable and workable arrangement to preserve the relationship between [the child] and [the father]. I'm also satisfied that given [the mother's] extended family live primarily in [the Cariboo], and given their clear recognition of the importance of maintaining contact between [the child] and her extended family, that [the child's] relationship with her extended family would be preserved.

However, the judge found that the mother failed to meet the third element of the test, that the move is in the best interests of the child:

[47] Both parties are competent and loving parents and are honestly motivated by what they believe to be in [the child's] best interests. The parties' spouses are also competent and loving persons who have assumed a significant parenting role in [the child's] life while respecting what, in this case, is the primary role of the biological parents. It is a comfort to the court to know that [the child] will be loved and properly nurtured by both parties and their spouses no matter where she primarily resides. 

[48] Consequently, many of the specifically enumerated and like factors set out in section 37 of the Family Law Act, that relate to the parties' abilities to exercise parental responsibilities, need not be analyzed given the parties are equally capable and motivated parents. 

[49] However, I do find the mother has not established that relocating [the child] from [the Cariboo] to [the Lower Mainland] is in [the child's] best interests. The two considerations that lead to this conclusion are:

1. the nature and strength of [the child's] relationships with her extended family, practically all of whom reside in [the Cariboo], where [the child] was born and primarily raised, and; 

2. the specialized educational assistance she is receiving.

[50] Having found [the mother] to have met the 'preserving of significant relationships' threshold set out in s. 69 (4)(a)(ii), does not foreclose the closer examination required in a 'best interests' analysis. 

[51] There was much evidence in regards to [the child's] close relationships with extended family, most of whom reside in [the Cariboo], and none of whom live in the lower mainland. I find the significantly reduced contact with her large extended family that [the child] would experience if moved from [the Cariboo] will be detrimental to [the child's] emotional well-being. 

[52] I also find there is no evidence from which I can conclude the specialized educational assistance that [the child] requires and is receiving through a local team of educational professionals could be duplicated in [the Lower Mainland]... 

[55] Another consideration regarding educational stability for [the child] is the uncertainty associated with [the stepfather's] athletic and career goals. ... The next step in his career is uncertain. He does not know what his job will be or where it will be.

[56] There is more stability for [the child] if she remains living in [the Cariboo] with her father. Given her young age and educational challenges, the importance of stability looms large.

Even though both parents are "capable and loving parents," the court held that in light of the child's "particular educational challenges and the establishment of an effective educational team at her current school" and "the particular importance of stability" for the child, it is not in the child's best interests to move from the Cariboo to the Lower Mainland.

If any points can be drawn from this case, apart from the useful example it provides of the s. 69 test in action, they are that:

1. failure on any one element of the test may prevent a move;
2. it would seem to be relatively easy to satisfy the good faith and reasonable arrangements elements of the test; and;
3. the analysis necessary to determine the course of action that is in the child's best interests is more difficult and requires a thorough, detailed consideration of each of the factors set out in s. 37(2).

I have discussed the mobility provisions of the Family Law Act and the test set out in Gordon v. Goertz for matters under the Divorce Act in the "Changing Family Law Orders and Agreements Involving Children" section of JP Boyd on Family Law.

Again, my thanks to my friend and colleague Agnes Huang for bringing this important case to my attention.