Our highly rated Vancouver Child Move Away, Child Relocation and Child Mobility Lawyers note the recent BC Court of Appeal decision of Mai v Schumann dealing with a mother’s without notice relocation of herself and the parties’ infant child to Victoria from Vancouver.
The trial judge hearing the Vancouver child custody mobility dispute found the child was thriving in the care of the mother and disagreed with the father’s argument the mother moved to frustrate his contact with the child. The father appealed to our province’s highest court and demanded the child be returned to Vancouver. The case emphasizes why quick action is needed in move away cases and that parties involved in these cases need to consult an experienced Vancouver child custody lawyer early on in any dispute.
The BC Court of Appeal rejected the father’s argument there was any improper motive by the mother and his argument that a finding of improper motive required an automatic return of the child and an order requiring the child’s residence to remain in Vancouver. The Court of Appeal said rarely will improper motive control a child relocation decision and said the focus is always on the child’s best interests.
The child custody mobility case also involved a section 211 child and custody access report which recommendations the trial judge declined to slavishly follow. The Court of Appeal made it clear judges not experts decide child custody, mobility, guardianship and access issues. It is never appropriate for a Judge to delegate his role to that of any expert.
We have extracted key paragraphs from the judgment ease of reference.
Summary:
The father appeals an order granting the mother sole custody and primary residence of their child, with generous access to the father. The parents had an intermittent three-year relationship. They never married and were separated at the time of the child’s birth. Shortly thereafter the mother moved to another community without telling the father, but facilitated access by the father to the child. At trial, the father sought an order that the mother be required to return with the child to the community in which he resided or, if she refused, that he be granted primary residence of the child. On appeal the main issue was whether the trial judge had erred in failing to find that the mother had an improper motive for the move and therefore in failing to order, on that basis, that she return with the child to his community.
Held: Appeal dismissed. The trial judge’s findings that the mother had no improper motive for moving with the child are entitled to deference. It cannot be said, as the father argued, that a finding of improper motive was the only inference available on the evidence. Moving for personal reasons or without notice does not a fortiori lead to a finding of an improper motive. In the absence of such a finding, the mother’s reasons for the move were not material to the larger child-centered analysis of what parenting arrangement was in the child’s best interests. In that inquiry, the father did not challenge the trial judge’s other findings that the mother was a devoted parent and that the child was thriving in her care. Accordingly, there is no basis for interfering with the trial judge’s conclusion on the ultimate issue that the mother was the parent who could provide for the best interests of the child and therefore the mother should have sole custody of the child in the community where she now resides.
The Court sets out just how difficult child move away cases are and what law applies:
[1] Mobility issues that give rise to custody and access disputes are some of the most challenging to resolve. In a perfect world children would grow up with the love and affection of both parents, living in the same home, neighbourhood or community. In a democratic society, however, individuals have the freedom to choose where they will live and work. When such choices involve a move by a parent who has the primary care of a child, that decision has the potential to affect the other parent’s relationship with the child. Increasingly courts have become the final arbiters of these competing interests.
[2] The test to be applied in such instances is from Gordon v. Goertz, [1996] 2 S.C.R. 27. It is a child-centered inquiry that asks: what is in the best interests of the particular child. While the test may appear straight-forward, its application is anything but and has been the source of considerable discourse amongst lawyers, academics, and jurists. The challenging nature of the issue is reflected in the narrow appellate review jurisdiction: absent a material error, a serious misapprehension of the evidence, or an error of law, an appeal court may not intervene (Van de Perre v. Edwards, 2001 SCC 60, [2001] S.C.R. 1014; Hickey v. Hickey, [1999] 2 S.C.R. 518).
[3] In this case, the mobility issue arose in the context of parents of a child (now age 2) who were involved in an intermittent relationship over a three-year period and who had separated for the final time before the child’s birth. Shortly thereafter, the mother moved with the infant from Vancouver to Victoria. Upon learning of the move, the father, in the context of an existing action to determine custody, applied for an interim order that would require the mother to return to live with the child in Vancouver. That application was dismissed; however, at trial the father continued to pursue an order for joint custody with the child’s primary residence to be in Vancouver. In the alternative, he applied for primary residence of the child (i.e., an order to the effect that either the mother return to live in Vancouver with the child or relinquish primary residence or custody of the child).
[4] The trial judge concluded that it was in the best interests of the child to remain in the sole custody of the mother with the parties sharing joint guardianship of the child based on the Joyce model, with the exception of final decision-making authority on the child’s major health care issues which, for reasons that I will touch on below, she gave to the father. The judge did not order the mother to return to Vancouver but awarded the father reasonable and generous access for specified and increasing periods of time, beginning with three-hour visits four times a week while the child was under two, increased to one weekly overnight visit after the child reaches two, and additional weekly overnight visits after the child reaches four. See G.M. v. S.S., 2012 BCSC 1491.
[34] The trial judge reviewed the jurisprudence on mobility issues and summarized the applicable factors and principles (at para. 126, citing para. 49 of Gordon v. Goertz):
1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know;
36] In regard to the relevance of the reasons for a parent’s move, the trial judge (at para. 131) referred to para. 23 from Gordon v. Goertz (endorsed and applied by this Court in Falvai v. Falvai, 2008 BCCA 503 at para. 31):
Under the Divorce Act, the custodial parent’s conduct can be considered only if relevant to his or her ability to act as parent of the child. Usually, the reasons or motives for moving will not be relevant to the custodial parent’s parenting ability. Occasionally, however, the motive may reflect adversely on the parent’s perception of the needs of the child or the parent’s judgment about how they may best be fulfilled. For example, the decision of a custodial parent to move solely to thwart salutary contact between the child and access parent might be argued to show a lack of appreciation for the child’s best interests: [citations omitted]. However, absent a connection to parenting ability, the custodial parent’s reason for moving should not enter the inquiry.
