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Relocation under the Guidelines - Summary Procedure


By: Philip Epstein

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T. (M.) v. A. (R.), 2014 CarswellBC 1427 (B.C. S.C.):

The parties to this proceeding, parents of a seven-and-a-half-year-old child had agreed to shared parenting, on a week on/week off basis and agreed that they would live within the geographical boundaries of Vancouver West. The mother has since remarried and has an additional child. She wishes to relocate with her husband and two children to Victoria. The father opposes the move and he sought an order under section 69 of the Family Law Act prohibiting the mother from relocating to Victoria. In response the mother seeks an order for a section 211 assessment of the needs and views of the child.

Somewhat surprising to me but perhaps for her own very good reasons, the mother says that the relocation issue should only be decided at a trial and should be referred to the trial list following the section 211 report. She resists a summary determination of the relocation issue. The father's response is that his application for a final order barring relocation should proceed summarily. He suggests there is no basis for a section 211 assessment and objects on the grounds of its expense and intrusiveness. More to the point, he says that the mother's materials failed to meet the onus of establishing the prerequisites of a relocation order under subsections 69(3) and (4).

Justice Saunders decided that a section 211 order is appropriate. He did so on the basis that the consequences of a move could have a profound effect on the child's well-being as much as it will disrupt a well-established routine that she has with her father and will impact the amount of parenting time at least. I note, parenthetically, that that would be the case in almost every relocation case and there do not seem to be any unusual factors in this case that would indicate that there are clinical issues or other issues that need the assistance of an expert.

Justice Saunders says that it is appropriate that the court have opinion evidence of an experienced professional in guiding its decision as to the child's best interest. Justice Saunders feels that the expert evidence will present the best possible evidence of the child's best interests. He also notes:

It is not appropriate, in my view, to consider the views of this child as a distinct factor in the analysis of what is in her best interests under s. 37(1)(b) and I will not order an assessment of the child's views.

Thus Justice Saunders orders the assessment and notes that his order does not prohibit the person conducting the assessment from also assessing the views of the child to the extent required in order to assess her needs. He notes that he is not ordering a specific assessment of the views of the child under section 211(1)(b) and I would point out that the views of a seven-and-a-half-year-old child are not going to be particularly helpful in determining these kinds of difficult issues.

Justice Saunders goes on to order that once the report is in hand the application will proceed summarily under section 69 but it will be open to reconsideration by the court upon reviewing the section 211 report to determine whether the matter will be determined summarily.

Justice Saunders says as follows:

I make this ruling because I find myself in agreement with Mr. Gordon's submissions that ss. 65 through 69 are intended to provide a means of summary determination of mobility issues in cases where there has been a written agreement or order respecting parenting arrangements as provided for in s. 65(2). The court, of course, must retain a residual discretion of referring applications to the trial list where appropriate. If the best interests of the child cannot be determined without viva voce evidence, cross-examination and the like, then there may be cases where the expense and time and effort of such a process is warranted.

Justice Saunders is somewhat motivated to make this decision by his review of the purposes of the new Family Law Act in British Columbia including the facilitation of speedy and efficient resolution of family law disputes. Justice Saunders notes that this theme is echoed throughout the White Paper and is an important objective of the new Act. He recognizes that not all cases of mobility or relocation are fit for a full blown trial and there is no presumption to that effect.
Assessments in a relocation case are a somewhat slippery slope. There is emerging social science literature about the effects of relocation on children, but there is much more work and research to be done before we have a clear understanding of how relocation can affect children and how one relocation case differs from another. Those professionals who do these kinds of assessments may well come to this process with some predetermined thoughts about relocation and its effect on children particularly young children. Accordingly, finding an assessor who has the necessary skill and experience to do an assessment in this area is a challenge and even more so is a task of finding someone who is not already disposed to one view or the other of this very difficult issue.

Relocation cases are among the most difficult that trial judges have to determine but ordering assessments is not going to provide an answer to these vexing questions. British Columbia is to be commended for at least enacting relocation guidelines. It's high time for the rest of Canada to do the same. They do not solve the problem of how to decide these difficult cases but they are a significant aid to the parties' counsel and the bench that have to wrestle with these cases.

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