The Law on Relocation of Children after Marital Breakdown
One of the most difficult issues in family law is deciding when to permit the “primary caregiver” parent to move with the children to a place far away from the other parent.
Lawyers who work in the area tend to agree that outcomes are highly unpredictable. Ordinarily, only a small percentage of divorcing parents go to court over custody matters. However, it is estimated that in relocation cases as many as 60 per cent may go to court. In addition, an unusually large proportion of the decisions at first instance are appealed.
This high degree of conflict is costly for all those involved, both financially and emotionally. A lengthy court battle is likely to seriously worsen relations between the parents.
The current unsatisfactory state of the law emanates from a Supreme Court of Canada (SCC) decision that is almost twenty years old, Gordon v Goertz,  2 SCR 27 [Gordon]. The guiding principles set out in it are fairly general, and there is little insight on how to apply them in practice. The court listed factors such as the nature of the existing relationship between the child and the parents and the “disruption to the child consequent on removal from family, schools, and the community he or she has come to know” (para 49).
There have been over a dozen applications for leave to appeal to the SCC since Gordon, all of which have been turned down. The SCC appears to feel that it cannot add anything given the thin legislative guidance it has. Gordon continues to exert immense influence. It has been cited almost 1,500 times in reported court hearings over the past ten years.
In Gordon, the SCC set out high-sounding principles. The problem is that the criteria that it stated are all highly subjective. This leads to a great deal of variation in decisions. Two different judges, looking at the same set of facts, can easily to come to different conclusions. The difficulty of predicting outcomes encourages litigation.
The Current Law on Relocation
The law of custody for parents who were previously married is governed by the federal Divorce Act, RSC 1985, c 3. It provides surprisingly little guidance on the issue of relocation. All it states it that an access parent shall be notified 30 days in advance of the intention to change the child’s place of residence (section 16(7)). It does not give any specific criteria for approving or rejecting the move, nor does it differentiate between a move across town versus a move to a different continent. The access parent who objects may ask for a variation of the custody order, under section 17(5), by which “the court shall take into consideration only the best interests of the child as determined by reference to that change.”
In trying to determine what is in the best interests of the child, the SCC in Gordon lists “the desirability of maximizing contact between the child and both parents” (para 49). That is not really very helpful, as a move to a distant place will always reduce contact. What one really needs to know is what advantages of the move should be weighed against the disadvantage of reduced contact.
The SCC undermined a logical weighing of the pros and cons by stating that the custodial parent’s motive for the move should be considered “only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child” (para 49).
The problem, which is not reconciled in Gordon, is that there are two different ways to frame best interests: 1) is it in the best interests of the child to relocate to the new destination? or 2) is it in the best interests of the child to be in the custody of the parent who wants to move (because that person has better parenting talents)? Number (1) is usually false, but number (2) is often true. How are they to be balanced?
In Gordon itself, the mother was allowed to move with the child from Saskatoon to Australia, to get training as an orthodontist. There was no discussion in the court about how this served the child’s best interests. A plain dentist in Saskatchewan generally makes quite a comfortable income. If there was any evidence provided that she could not get orthodontic training some place closer than Australia, it did not reach the Supreme Court. The only compromise imposed by the court was to have the child travel to Canada for her annual visits, rather than the father going to Australia.
A New Legislative Attempt in British Columbia
Provincial laws determine custody issues among parents who had children together but were never married. With the recent amendments to its Family Law Act, SBC 2011, c 25, British Columbia became the first jurisdiction in Canada to set legislative guidelines on relocation. Under BC’s law, there is now a substantial presumption in favour of allowing a primary caregiving parent to move with the children.
However, this presumption is somewhat tempered. The moving parent must show that “the proposed relocation is made in good faith,” and one of the criteria to assess this is “the reasons for the proposed relocation” (sections 69(4)-69(5)).
BC’s reform followed from a White Paper on Family Relations Act Reform, which reviewed the problems with the pre-existing situation under Gordon. It noted that “Professor Rollie Thompson argues that the governing relocation test from Gordon v. Goertz and subsequent cases is so open-ended and flexible that there is little certainty in relocation law” (69).
Subsequently, the same Professor Thompson commented on BC’s legislation, and criticized it for the distinction it makes based on the proportion of time that children live with each parent. He suggests that it will only increase the incentive for divorcing parents to fight over that right ((2012) 30 CFLQ 235 at 263).
Arguably, it would be more appropriate to look not at labels but at the quality of behaviour. For example, does the non-custodial parent have a close relationship with the child, exercising regular and frequent access? Does the non-custodial parent properly abide by the financial support obligations? Using such performance based criteria would reward and incentivize good behaviour.
Justification for Relocation is the Ultimate Policy Decision
It is regularly noted that the most unrealistic aspect of the Gordon decision is the suggestion that the motive of the parent who is moving can be disregarded. Professor Thompson finds that in practice judges often take a different view: “Most parents want the court to consider their good reason for the move. Only parents with no good reason for the move try to argue a strict application of Gordon… Any sensible relocation analysis requires a careful consideration of the reason for the move” ((2012) 30 CFLQ 235 at 247).
In terms of the principles of implicit contract and legitimate expectations, one could argue that the burden of evidence should be on the custodial parent who is seeking to relocate. Both parents freely made the initial decision to form a family and have children in that particular city. There is arguably a presumption of some implied commitment to remain there for the sake of the other parent if the marriage breaks down. A move away should not be banned, but it should not be lightly undertaken either. The law should be aimed at discouraging relocation unless a good objective reason exists to justify it.
There is a high societal priority to having a child maintain contact with both parents, assuming that both of them are committed and caring parents. There is a considerable volume of research that finds better outcomes for such children, with a resulting reduction in the societal burden. One might argue that “primary caregiving” custody is a qualified privilege. As a matter of practicality and stability, when parents split up, it makes sense to have the child live in just one home. That does not mean that the non-custodial parent should be written off and ignored.
As noted above, BC’s amendment to its Family Law Act does allow the reasons for the move to be looked at. It remains to be seen how carefully this will be interpreted. The emphasis on “good faith” may suggest that it was meant primarily to exclude moves that are made purely to spite the other parent.
The larger policy question is whether society should impose more specific, clearly defined requirements to justify a move. For example, legislation could specify the need to show factors such as economic necessity, where the custodial family unit has a low income in the current location; or reunification with a supportive extended family, such as where a custodial mother is alone in her current location.
Where a relocation is permitted, the Child Support Guidelines or some other financial adjustment should factor in the costs of transportation, to help encourage continuing contact with the child by both parents.
Each case has a unique fact situation, and judicial discretion will always be necessary. However, there is strong evidence that the current state of the law allows too much discretion, and leads to excessive unpredictability and inconsistency in judicial decision making. The Divorce Act should be amended to set clearer rules than the ones that emerged from the Supreme Court’s decision in Gordon.
Recent amendments to BC’s Family Law Act have made an attempt in this direction. The position taken in that legislation is a useful starting point. It could be argued that it leans too heavily toward a presumption that the primary caregiver will be allowed to relocate, absent bad faith.
Additional social science research needs to be brought to bear on the issue. This would help determine whether the new national legislation should impose more stringent criteria for allowing a relocation. This could include criteria requiring the relocating parent to demonstrate a valid motive for the move.