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.

29 August 2013

CBA Releases Important Report on Improving Access to Justice

Today the Canadian Bar Association has published a report of its Access to Justice Committee, Reaching Equal Justice: An Invitation to Envision and Act (PDF). This follows on the heels of a flurry of recent reports on the subject, most notably the final reports of the working groups of the national Action Committee on Access to Justice.

According to the CBA's press release, the report contains the committees recommendations for achieving meaningful access to justice by 2030. According to the release, to reach this goal,
"...the committee wants to change the conversation – shift it away from the finger-pointing and divisiveness that have hampered any progress on the topic until now, to a more co-operative model of stakeholders working together to achieve measurable results. The job needs to be a comprehensive one ... putting out fires where they erupt will not suffice. 
"To that end, Reaching Equal Justice offers a set of 31 targets that, if met, will help bring Canada closer to 100 per cent access to justice for all. The targets include establishing metrics to measure accessibility, and progress on the issue; educational initiatives to improve public legal capability; working to improve legal aid services; and working toward the appointment of access to justice commissioners in all territories and provinces, as well as at the federal level.

"The report is not a final answer, committee Chair Dr. Melina Buckley said, but a platform, a set of proposals for going forward."
The CBA's smartly-designed webpage on the equal justice project is well worth a visit.

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.

04 August 2013

Helpful Decision on Finality of Divorce Act Orders Released

Mr. Justice Grauer of our Supreme Court has recently published his decision in Pozzobon v. Pozzobon. The case concerns a father's application to have the primary residence of his daughter moved from her mother's house in Alberta to his house in British Columbia. This case continues and to some extent clarifies the discussion begun in Yu v. Jordan about when a Divorce Act order is a final order.

The relevant facts are these. In 2010, the parties agreed to an order at a judicial case conference dealing with custody, guardianship and access. They agreed that the daughter's primary residence would be with the mother, and they believed that the JCC order was a final order. In 2011, the parties agreed to an order varying the JCC order to allow the mother and child to move to Alberta. In 2013, the father applied to vary the JCC order to give the child's primary residence to him. The parties had not yet been divorced at the time of the application.

The importance of the finality of the JCC order concerns the test that must be met to vary the order. To answer this threshold question, the court was required to determine whether the order had been made under the Divorce Act or the old Family Relations Act, and then whether the order was an interim order or a final order.

Prior to the new Family Law Act coming into force, the question of whether an order about children between married spouses was a Divorce Act order or a Family Relations Act order rarely mattered. Because the two laws talked in about the care of children in a compatible manner, it was commonplace for an order to simply grant custody without being more specific. This issue could sometimes become important, however, if a spouse applied to change the order.

Under s. 20 of the Family Relations Act, the court could vary an order if there had been a change in circumstances since the order was made:
Subject to this Act, if a court has made an order under this Act ... the court may, on application, vary or rescind the order if circumstances have changed since the order was made or last varied.
Under s. 16 of the Divorce Act, however, the court may vary an interim order without needing proof of a change in circumstances:
(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).
Sections 17(1) and (5) of the Divorce Act concern the varying of final orders, and do require a change in circumstances:
(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, ... a custody order or any provision thereof on application by either or both former spouses or by any other person. 
(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.
Did you catch the reference in s. 17(1), about an application by a "former spouse"? In order to be a former spouse entitled to apply to vary an order the spouse must be divorced, of course, and until the spouse is divorced the requirement of a change under s. 17(5) isn't required.

In other words, if you want to change an order about the care of children, if the order is an interim order under the Divorce Act, you just get to apply and the court will usually consider the question of custody and access anew. If the order is a Family Relations Act order or a final Divorce Act order, you must first prove that there has been an important change in circumstances before the court can hear your application. As a result, the status of the order and the law it was made under were critical to the father's application.

The court resolved the question of the order's status by referring to the recent decision of our Court of Appeal in Yu v. Jordan, and quoting from paragraph 47:
"It is common ground that an order for corollary relief in a divorce action that pleads both the Divorce Act and the [Family Relations Act] cannot be a final order for corollary relief under the Divorce Act absent the granting of an order for divorce. Such an order will remain an interim order under the Divorce Act until the divorce is granted. Final corollary relief under the Divorce Act can be granted only upon the granting of an order for divorce..."
In other words, when a claim asks for orders about the children under both the Divorce Act and the provincial legislation, the order will never be a final order until a divorce is granted, regardless of the intention or understanding of the parties to the order. As Mr. Justice Grauer put it, "because no order for divorce has been pronounced, any order under the Divorce Act is perforce an interim order no matter what the parties contemplated or the order states."

My thanks to my colleague Kathryn Robinson for bringing this case to my attention.