Mar 11, 2015

AREAS OF LAW: Family law; Relocation; Best interests of the child

T.K. v. R.J.H.A., 2015 BCCA 8 (CanLII)

A joint custody parent’s reasons for a proposed relocation are relevant to the consideration of whether the move would be in the child’s best interests.~

BACKGROUND: The Appellant, T.K., and the Respondent, R.J.H.A., were married for close to ten years. The marriage broke down when the Appellant insisted the family move from Victoria to the Toronto area, where she was raised and where her extended family continued to live. The Respondent refused to move. This resulted in a formal separation following which the Appellant commenced divorce proceedings and applied to relocate with the children. An assessment of the parents and the children was undertaken by a registered psychologist, who prepared a report on the children’s needs and views, and on the parties’ ability and willingness to satisfy the children’s needs. In the report, the psychologist recommended that the children remain in proximity to both parents and that the parents share decision-making responsibilities. The Appellant took issue with the assumptions that she would remain in the Victoria area if her relocation application was refused, and that the Respondent would remain there if her application was granted. She argued at trial that the report failed to consider alternative scenarios, such as both parents relocating to the Toronto area or her relocating there without the children. Based on this argument, the trial judge asked the psychologist to prepare a supplemental report addressing these scenarios. In the supplemental report, the psychologist acknowledged that either the Toronto area or the Victoria area would be an acceptable place for the children to live, provided that they were in close proximity to both parents. The trial judge granted the parties joint custody with equal shared residency of the children, refused the application to relocate, and awarded child support based on the shared custody arrangement using the formula of a simple set-off of each parties’ income. This included the imputation of some income to the Appellant. The trial judge also awarded the Respondent costs in the action.

APPELLATE DECISION: The appeal was dismissed. The Appellant argued that the trial judge erred by failing to apply the best interests of the child test as the sole determinant of her application to move with the children, by imputing income to the Appellant given the special needs of the couple’s son, and in awarding the Respondent costs. The Court considered the central issue in the appeal to be the application of the test in Gordon v. Goertz. Gordon v. Goertz set out a two-stage test for the variation of a custody/access order under the Divorce Act. The first stage requires the parent seeking to vary the order to demonstrate a material change in the circumstances affecting the child. Once that change has been established, the court must engage in a fresh inquiry into what is in the best interests of the child. The interests and rights of the parents are not considered in this analysis. Gordon v. Goertz provides that the court should only consider the custodial parent’s reason for moving in the exceptional cases where such consideration is relevant to that parent’s ability to meet the needs of the child, but this has been challenging to apply in practice. In any event, in the context of an initial application, there is no single custodial parent and there has been no previous determination with regard to which parent is best able to meet the needs of the child. Therefore, in the Court’s view, the test on an initial application needs to include a modification of the restriction on considering the applying parent’s reasons to relocate. Particularly in a joint custody or shared residency arrangement that has been found to be in the child’s best interests, the reasons for one parent to want to move, effectively ending what has already been found to be in the child’s best interests, would be very relevant to determining whether the child’s needs can be met in this proposed new arrangement. The other concern that arises in mobility cases is the so-called “double-bind”, where the parent is asked whether, if the application to relocate is refused, they would move without the children or remain in the present community. If they say they would move, that could negatively affect the court’s assessment of them as a parent. On the other hand, if they say they would stay, that could positively impact the assessment but result in the status quo as a presumptive disposition. After considering the jurisprudence with respect to the double-bind question, the Court found that the risk of it resulting in a presumptive disposition may be greater where a joint custody or shared residency arrangement requiring both parents to reside in the same locale is in the best interests of the child. Asking both parents whether they would move or stay if the application was granted or refused is relevant, provided the evidence it elicits is weighed carefully together with all other evidence. In this case, the trial judge carefully considered the relevant factors and weighed all of the evidence. He did not err by relying on an underlying double-bind presumption that the status quo should prevail. The Court also found no error with respect to the imputed income or the costs order.