Why the Status Quo? – SSL v JWW, 2010 BCCA 55

In this case, a couple asked the court to clarify the trial judge’s approach taken to an application for custody and guardianship, made under the Divorce Act, where one parent sought to vary the existing shared parenting arrangement to permit a move.

• The parents shared guardianship of their son and daughter under a written agreement.
• For approximately five years, the children’s parenting time split was 60/40 with their mother and father, respectively.
• Both parents lived in the same community, and each spoke highly of the other’s parenting ability and relationship with their children.
• When the mother became engaged, she applied for an order to establish the children’s residence in Ontario so she could move there with the children. It was clear from the facts that her new fiancé would not be able to move to her.
• She believed the move would ensure she continued to have a successful career, would give her more time with her children due to less traveling, and would enable her to provide more for them due to the pooling of resources.
• Both parents were from Ontario originally, and a move of all parties would have allowed the father better employment prospects and the children stronger relationships with their extended family.

Why This Decision is Important

The trial judge, in the first instance of this case going to court, made orders to “maintain the status quo,” and acknowledged that he could not prevent the mother from moving to Ontario. He effectively determined that it was in the best interests of the children to remain in Victoria, whether or not their mother did.

However, it is clear from his reasoning that he did not explicitly consider the effect that a disruption in their relationship with their mother would have on the children.

Nor did he explore why the father was adamantly against moving to Ontario, where he may also enjoy better prospects and remain with his children.

The trial judge fell into the common error in parental mobility cases of preferring the “status quo,” when given the “third option” of the parent seeking relocation offering not to move.

The trial judge, in opting to maintain the status quo, avoided having to make the difficult decision of choosing one parent’s plan over another. In doing so, though, they implicitly accepted that the father would not move, and correspondingly, the mother would not move if the children were not permitted to move. Thus, there was only one possible outcome: the children would stay.

Really, though, there are supposed to be no presumptions in mobility applications. Both parties are tasked with demonstrating how their position advances the best interests of the children when considering all possible scenarios.

The only issue here was the children’s primary residence, as both parents agreed that joint guardianship and custody should continue. This distinguishes this case from the majority of parental relocation cases, wherein it is usually a situation of the child being in the primary care of one parent and that parent wanting to move away.

When the court finds that the best interests of the children require both parents to be in the same place, then the court needs to choose between the shared parenting options offered by the parents, without presuming that the current care-giving and residential arrangement is the preferred one.

The choice of the existing location cannot be the default position.

The court would be remiss if they did not consider the evidence from both parents in terms of all four possible scenarios (primary residence with their mother in Ontario, primary residence with their father in Victoria, shared parenting in Victoria, or shared parenting in Ontario).

More significant than a time-spent determination is the role each parent has played in the children’s lives. To understand which arrangement works best for the children going forward, we ask: what is it that each parent contributes to the children as a care-giver?

This also necessitates looking into and considering the resources available to each parent, in personal and economic terms, and the potential effect on those resources in light of each proposed scenario.

Children’s interests are necessarily intertwined with those of their parents, which makes it impossible to determine the best interests of the children in each scenario without considering how that scenario impacts the parents.

Case Details

Family law — Children — Mobility rights

Outcome

In this instance, the court ordered a new trial, because they found that the trial judge had not adequately inquired into the parents’ respective roles in their children’s lives, nor considered how those roles might change in response to a move of any kind.

Key Takeaways

• When one parent seeks an order to move and change their children’s primary residence, the court must fairly consider the evidence given by both parents as to how allowing or denying that move will affect both their lives and their children’s.
• The court is precluded from putting parents into a “double bind,” which is to consider evidence given by one parent that, if their children are not allowed to move, they also will not move.
• When children have two good parents, proximity of parental homes is usually in their best interests. But the court is to keep in mind that, generally, proximity could be achieved in either location.

References

SSL v JWW, 2010 BCCA 55 (CanLII)
https://canlii.ca/t/27vgk

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