The BC Child Relocation Appeal decision of Bassett v. Magee dealt with several issues in the underlying family litigation but our MacLean Family Law blog focuses on the children’s primary residence and relocation portion of this important judgment.
Respecting the BC child relocation appeal, it was determined at trial that mother could move away with the children and the children would remain with the respondent when she moved, but more unusually that the move would not occur until the daughter became comfortable staying at the appellant’s home overnight.
If you are disappointed with a trial judgment that may have deprived a child of maximum contact with both parents and you want to pursue a BC Child Relocation Appeal contact us immediately.
Lorne MacLean, QC was successful counsel in the SCC decision of Young v. Young often cited on the principle of maximum contact by a child with both of their parents.
The Court of Appeal set aside the trial judge’s orders respecting relocation. They did not agree that the move should be contingent on the daughter’s emotional state which was unpredictable and unfair to the child. The court was very concerned it gave the child inappropriate power and over-involved the child in this high conflict case when it was considered very important that the children be kept out of the fray for fear of psychological damage.
[58] The relocation issue is much more problematic. If the respondent moves to Vernon with the children, the appellant’s opportunity to see them is significantly diminished. The increased distance and complicated work shift and school scheduling will bring about a marked reduction in the time the appellant and the children can spend together. With respect, the negative impacts on the interests of the children in maintaining a relationship with their father are not adequately addressed in the reasons. Neither is there any discussion how the consequences of relocation can be reconciled with the expert opinion of Dr. Michael Elterman, whose investigation and report were ordered on 8 September 2014 and filed in time for the trial. His recommendation was that the pre-trial access regime continue and that the son, in particular, should have more time with his father:
… I am going to recommend that [the son] be with [the appellant] on each rotation that [the appellant] is off work according to the present schedule where he gets him from the first day that he is off until the fourth day. I think that as a teenager [the son] will benefit from a relationship with a same-sex parent and as a teenager his wishes and preferences need to be taken into account.
[59] Since Dr. Elterman provided a considered and objective view of the parenting issues and the respondent’s relocation would involve a significant reduction in the appellant’s parenting time, it was incumbent on the trial judge to deal with the effects of relocation on this aspect of the children’s best interests.
The BC child relocation appeal court noted the best interests of the child in relocation are addressed in the Family Law Act, S.B.C. 2011, c. 25 including :
- whether the proposed relocation is made in good faith, taking into account reasons for the move, whether the move enhances the child’s quality of life, whether notice was given, any restrictions on moving away in orders or agreements
- has 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
- in cases of shared parenting before the move whether the relocation is in the best interests of the child.
Mr Justice Donald writing the decision had some strong words for where he felt the learned trial judge erred in the BC child relocation appeal as follows:
[61]There is another serious defect in the relocation order. It lies in the contingent nature of the order. The children can move to Vernon with their mother only when the daughter overcomes her reluctance to spend overnight visits with her father. This creates uncertainty, unpredictability and effectively puts the location of the respondent’s and children’s home on the daughter’s shoulders.
[62]In what follows, the trial judge discusses the daughter’s problem with overnight stays, along with the parental alienation theme, and makes the relocation conditional on the child’s situation:
[38] The children will continue for now to live in Cranbrook with their mother, at least until the end of the school year.
[39] [The daughter], as I have noted, has found it difficult to stay overnight at her father’s house. Both parents need to do all they reasonably can to change her attitude about that. As one example, Ms. Magee is not to offer [the daughter] a choice about where she spends the night unless the situation is extreme, by which I mean that [the daughter] is afraid to stay overnight at Mr. Bassett’s house and Ms. Magee cannot calm her fear.
[40] Counsel for Mr. Bassett argued that Ms. Magee, having in the past given [the daughter] the choice of whether to stay overnight with her father, was guilty of alienating [the daughter] against her father. Counsel cited L.G. v. R.G., 2012 BCSC 1365, particularly at paragraph 203, and submitted that Ms. Magee qualifies as an alienating parent. Mr. Bassett’s counsel cited other examples which she said also constituted alienating conduct on Ms. Magee’s part. I do not find parental alienation in this case. Both parents in this heated dispute have generally done their best to keep the children loving and respectful of the other parent. Occasionally, Mr. Bassett may have discussed with the children the circumstances of the divorce beyond what he should have, but, as I say, I find that generally both parents have attempted and continue to attempt to respect one another in front of the children.
[41] Returning to [the daughter]’s reluctance to spend the night at Mr. Bassett’s house, I am not ordering the parents at this stage to undergo professional counselling with [the daughter] to cure that problem. However, if either parent concludes that such counselling is required, I am then ordering it and the cost of it shall be shared equally between the parents.
[42] I am not separating [the children] for the time they are with each parent. Until [the daughter] is reconciled to being with her father overnight, Ms. Magee and the two children will remain in Cranbrook. In that way, Mr. Bassett can have the children at his Kimberley house during his parenting time, with [the son] staying overnight, with him and [the daughter] returning to her mother to sleep. Later in these reasons, I will be addressing the sale of the Cranbrook house. It is to be sold. Possession of the house is to remain with Ms. Magee until at least the end of the school year. After the house is sold and possession is transferred to the purchaser, Ms. Magee will need to find other accommodation in Cranbrook for her and the children for so long as [the daughter] will not spend overnight with her father. Perhaps that accommodation will be with her parents or a friend. Any expenses associated with it will be borne by Ms. Magee and not Mr. Bassett. So long as Ms. Magee and the children remain in Cranbrook, pick-ups and drop offs will be where she is residing.
[43] After the school year has concluded for both children, and [the daughter] accepts staying overnight with her father when he has parenting time, Ms. Magee can move to Vernon with [the children].
[63]The final order reads:
6. The children shall continue to live in Cranbrook, British Columbia with the Respondent at least until the end of the school year. After the school year has concluded for both children, and [the daughter] has accepted staying overnight with the Claimant, the Respondent may move the children to Vernon, British Columbia.
[64]When, if ever, will this acceptance take place? How is it to be determined? How can the parties plan their lives with this uncertainty? Given the parties’ disputatious history, is there not likely to be conflict whether the child has met the condition for moving? A relocation order should not hinge on the occurrence of an unpredictable event. Neither should it introduce a new bone of contention.
[65]Finally, the relocation contingency is unfair to the child. The risk of pressure is obvious; the trial judge had to admonish the parents to keep the children out of the conflict. Moreover, the order also gives the child an inappropriate degree of power to affect the living circumstances of the family. I do not say that she would abuse the power but I think her reconciliation with her father should not be complicated by this element.
[66]The respondent may apply again for relocation when the circumstances are more settled and the court is in a position to make a certain order with immediate effect.
Contact us at 1-877-602-9900 because strict time limits to file a BC Child Relocation Appeal apply.
