Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

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

Areas of Law: 

Family law; Relocation; Best interests of the child

~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.

COUNSEL COMMENTS provided by Robert Gill and Jessica Koch, Counsel for the Respondent

“Contested mobility issues arise in a small proportion of family law disputes. They are probably over-represented in the case law, in comparison with other kinds of disputes. This is because of the difficulty in achieving negotiated compromises when parents are in profound disagreement over where they and their children should live. Disputes about parenting time and responsibilities or financial issues can often be settled by looking for a middle ground. By definition, finding a “middle ground” in a location dispute will seldom please either side.

The decision in T.K. v. R.J.H.A. applies Gordon v. Goertz, [1996] 2 S.C.R. 27, in the context of a divorce proceeding. It sets out a useful survey of many of the principles underlying the mobility analysis, described by the court as a “jurisprudential mine field”. Since the enactment of the Family Law Act (FLA), in at least one respect a divergence is apparent between the considerations in mobility disputes between unmarried parents who are left to litigate under the provincial legislation, as opposed to married parents who will be asking the court to apply the tests from Gordon v. Goertz, under the Divorce Act.

The FLA purports to enshrine a legislated approach to the “double bind” issue. The court is directed in ss. 46(2) and 69(7) not to consider whether the guardian who is planning to move would do so without the child. It does not, however, rule out a corresponding consideration of whether the guardian who is resisting the move would stay put if the children were relocated.

In T.K., the court had before it a report prepared under s. 211 of the Family Law Act that strongly supported continued shared parenting by both parents, arguably taking precedence over the choice of either location. In such a situation, the court suggests that the double bind question, as a matter of practical reality, is relevant to determining which location would serve the children’s best interests. (The court’s remarks may be obiter dicta, since on the evidence at trial counsel resisted pursuing the question or relying on testimony that had been spontaneously volunteered by one parent on the point). The court suggests that such an approach is not inconsistent with the principle in Gordon v. Goertz that says the child’s best interests must be found within the practical context of the reality of the parents’ lives and circumstances. A similar inquiry will be problematic in mobility cases under the Family Law Act, where it is expressly prohibited by the legislation.

The decision in T.K. also offers some insights into the proper approach to considering a parent’s stated reason for a move. In Gordon v. Goertz, the Supreme Court was considering a situation where a parent who was already exercising sole custody was seeking to move with the children. In that context, the court said that the custodial parent’s reason for moving would only be relevant if it was relevant to that parent’s ability to meet the child’s needs. Otherwise, the reason for the move was entitled to “respect”.

In T.K. the Court of Appeal recognizes that it is more problematic to extend “respect” to the stated reasons for a move in cases where there has been no previous determination with respect to custody, or where there is a pre-existing joint custody order or de facto joint custody/shared residency arrangement. In this scenario it has been determined or presumed that the best interests of the children are met by both parents meeting their children’s needs together. It follows that the reasons for one of the joint custodial parents wanting to move, or the reason for the other joint custodial parent opposing the move, would be very relevant to determining whether the children’s needs can be met by only one of the parents. These remarks by the court are consistent with comments made in other recent cases, notably Stav, 2012 BCCA 154. In this regard, the decision in T.K. is consistent with ss. 46 and 69 of the Family Law Act, which permit the court to consider the reasons for the desired change in location. Curiously, the FLA does not also require the court to consider the other parent’s reasons for opposing the move.”