MacLean Law’s Calgary Child Custody Family Lawyers who can be reached at 403-444-5503 know child relocation, also called child mobility and move away cases, are tough. The test for being allowed to move away is a child focused best interests test. The ease for a parent to move away is less likely when shared parenting time and shared equal custody is the status quo. The Court of Appeal decision in MMG v JAS reiterates that trial judges have discretion to allow or deny a child relocation application and appeal judge’s can only interfere if the error made at trial is a big one. MacLean Family Law is one of Western Canada’s largest, most experienced and highly respected family law firms.
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MacLean Law’s Calgary Child Custody Family Lawyers founder, Lorne Maclean, QC has extracted the key principle on the latest MMG v JAS Calgary Child Mobility case:
[1] This is a mobility case. The appellant, Ms. G, is the mother of two sisters, aged ten and eight. Mr. S, the respondent, is the father. The parties have shared parenting time and responsibility for the children equally since their separation about six years ago. The children have lived in the Medicine Hat area their entire lives. The mother wants to move from Medicine Hat to Moyie Lake, British Columbia, where her new husband has a home in an RV resort about 20 minutes from Cranbrook. The respondent, Mr. S, is opposed to the move. The trial judge denied the Ms. G’s application to move with the girls and she appeals.
[10] At the two-day summary trial, Ms. G proposed a parenting plan where the children would reside in Moyie Lake/Cranbrook, she would be a stay-at-home parent to help the girls adjust, and may later search for employment in the Cranbrook area. Mr. S proposed a parenting plan where the children would live at his farm near Medicine Hat. He would alter his work schedule as necessary to take the children to and from school. He would rely on the assistance of his parents to help raise the children.
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[11] The trial judge followed the mobility test from Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, 134 DLR (4th) 321 [Gordon]. He found the proposed relocation of the girls from Medicine Hat to Moyie Lake would constitute a material change in circumstances, and proceeded to make a fresh inquiry into the best interests of the children.
[12] The trial judge found that the shared parenting arrangement was “effectively fifty-fifty, in terms of time and responsibility” (Reasons, AR F20/39-40) and considered the factors in Gordon, modified to account for the shared parenting regime.
[13] He considered (1) the existing shared parenting arrangement and the relationship between the children and Ms. G; (2) the existing shared parenting arrangement and the relationship between the children and Mr. S; (3) the desirability of maximizing contact between the children and both parents; (4) the views of the children, which had not been canvassed; (5) Ms. G’s reason for moving; (6) the disruption to the children of a change in custody; (7) the disruption to the children consequent on removal from family, schools, and community; and (8) various other factors, such as Mr. S’s economic stability, the importance of the paternal grandparents, the location of the proposed residence at Moyie Lake on a leased lot at an RV park, the girls’ relationship with Mr. G and his children, and Ms. G’s inflexibility.
[14] The trial judge concluded that it would be in the best interests of the children that they not be moved from Medicine Hat, Alberta, to Moyie Lake, British Columbia.
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[15] This Court described the applicable standard of review in mobility cases in MacPhail v Karasek, 2006 ABCA 238 (CanLII) at paras 25-27, 409 AR 170:
In Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60 (CanLII), Bastarache J. stated at para.13:
[A]n appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion.
[22] In this case, although both parties share parenting responsibilities, the approach commended in Gordon remains apt. In Spencer, this Court wrote, at paras 15 and 19:
15 Section 17(5) of the Divorce Act requires the court to take into consideration the best interests of the child, as determined by reference to that change. In other words, the analysis of best interests must consider the impact of this change on the children. Gordon made clear that a child-centred analysis properly includes consideration of the circumstances as they existed prior to the change, but does not stand for the proposition that children’s best interests are to be determined by weighing the status quo against the change. Were that so, the status quo would almost always tip the scales.…
19 Once a material change has been found, Gordon directs the judge to be mindful of the status quo prior to the move, but the inquiry cannot stop there. The relevant inquiry is to the children’s best interests, evaluated in the new circumstances as found (here, the effect on the children of the mother’s relocation with her new husband and child to Victoria if they are allowed to move) compared to its effect on them if they are not allowed to move. The children’s best interests must be assessed in the new circumstances, its impact on them if they stay or if they go: see Christmas v. Christmas, 2005 ABCA 213 (CanLII).
[23] Thus, the Court is required to determine whether the best interests of the child require a change in custody based upon the proposed move – i.e. whether Mr. S should receive custody of the children, assuming Ms. G leaves: RJF at para 52.
[26] It is true that the trial judge alluded to the status quo in finding the shared parenting regime had worked very well: AR F021. He acknowledged the bond between the younger sister and Ms. G, but concluded that a disruption to other family relationships in the aggregate family structure, and to the current shared parenting arrangement, would not be in the children’s best interests: F021 He concluded that any benefits the move might have were outweighed by the resulting disruption to family relationships, including the involved grandparents; to school and extracurricular activities; and to community, including friends and attachment to the farm and animals (AR F23-24).
[27] Custody and access decisions are inherently exercises in judicial discretion. This Court may only intervene if the trial judge erred in law or made a material error in the appreciation of the facts. The appellant has not demonstrated an error in law or a material error in the appreciation of the facts.
In the end the children remained in Medicine Hat Alberta and the mother’s appeal was dismissed.
