Joseph Broadhurst of our firm has recently achieved success in both a BC Supreme Court trial (A.B. v. C.D., 2014 BCSC 1081) and an appeal from Provincial Court to BC Supreme Court (C.M.B. v. B.D.G., 2014 BCSC 780) on the issue of mobility. This is the third part of our three part series explaining the law when one parent wants to move and the other wants to stay. The first part is available here and deals with the different standards and laws applicable to the issue. The second part is available here and sets out the factors that the court must examine in considering the mobility issue. In this post, we will examine how the court should apply the law.
There has been considerable evolution (and confusion) about how exactly to approach the best interests of the children when a move is proposed, specifically with regard to what scenarios a Judge is allowed to consider when deciding what is best for the Children. Judges do not have the authority to force a parent to stay. Rather, they only get to decide if the child goes with the relocating parent or not. However, Judges have on many occasions compared the idea of both parents staying to the idea of one parent moving[KH1] . In these circumstances Judges either assume a parent would not move if their children are not moving, or they rely on the relocating parent having testified exactly that.
The Court of Appeal has rejected that approach on several occasions. In particular in S.S.L. v. J.W.W., 2010 BCCA 55 the Court of Appeal created a four scenario approach to mobility questions. They specifically said:
In my view, the court’s task in these joint parenting cases is to analyze the evidence in four possible scenarios, in this case, (i) primary residence with mother (London, Ontario); (ii) primary residence with father (Victoria, B.C.); (iii) shared parenting in Victoria; and (iv) shared parenting in London, but to do so knowing the court’s first task will be to determine which parent is to have primary residence. When the question of primary residence is evenly balanced and the court finds the best interests of the children require both parents to be in the same locale, then the court will need to choose between the shared parenting options offered by the parents, without presuming the current care-giving and residential arrangement is to be the preferred one.
What this paragraph in effect says is that a Judge should assume the relocating parent moves and then decide if the child(ren) will be better off staying or going, in effect starting by comparing scenario 1 (primary residence with relocating parent) and 2 (primary residence with staying parent). It is only when the Judge cannot choose between these first two scenarios that the Judge should then consider scenarios 3 and 4; namely, that both parents stay or that both parents move.
Sadly, the S.S.L. standard has not been uniformly adopted. Since the decision by the Court of Appeal, , Judges have on several occasions compared all four scenarios together at the same time. This has made it harder for lawyers to predict the outcome of mobility cases, since the standard has been (in our view) misapplied in many cases. We are hopeful that with greater understanding and more mobility cases moving through the court system, the court’s decisions will become more reliable and predictable.
Mobility is an area of family law that is still evolving, and the cases are very difficult to present on your own. We urge you to speak to a family law lawyer about it if you have children and are either looking to move, or you are affected by a parent who is attempting to move.