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| Suzanne Zaccour |
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| Joanne Moser |
Part 1: We’re doing relocation wrong
Lucy is a 10-year-old child who spends most of her time in the care of her mother but also spends significant time with her father. Lucy’s mother just got a job across the province and asks the court to authorize the relocation of the child. The father objects, observing that the current arrangement works well, that Lucy needs both her parents and that moving her to a sole parenting arrangement would not be in her best interests.
Can you spot the legal error yet?
It’s alright, let’s keep going. The judge weighs the pros and cons of authorizing the move. On the pros side, he notes that the mother will have access to better employment and that there is a good school in the proposed new town of residence. On the cons side, relocating Lucy would disrupt a well-functioning shared parenting arrangement and would mean Lucy barely sees her father. Sure, she can travel during the summer, but she won’t be with him 40 per cent of the time, as is currently the case.
What about now? Are you ready to file your appeal?
Let us add some context. More than 90 per cent of relocation applications are made by mothers. Typically, the relocating mother is the primary caregiver, both before and after separation. In many cases, she wishes to return to her hometown after having followed the father to his place of residence or employment — the “trailing spouse” phenomenon.
Returning home is particularly important for victims of family violence — whether or not they disclose it — since one of the primary tools of coercive control is isolation from friends and family. Opposing a relocation that would enable the survivor to re-establish networks of support can be part of a continued process of post-separation abuse.
Despite all this, relocation law is stacked against mothers in multiple ways — at least, the way it’s interpreted.
But first, let me tell you more about those invisible errors that block mothers’ relocation. These are errors we successfully argued before the Saskatchewan Court of Appeal as counsel for the intervenor (the National Association of Women and the Law, or NAWL) in the case of Friesen v. Friesen, 2023 SKCA 60. The father, who had had very limited parenting time with the child and a criminal conviction for assaulting the mother, successfully opposed the child’s relocation and obtained a shared parenting order.
The same errors were revealed in NAWL’s in-depth study of the 2019 Divorce Act amendments. NAWL’s research makes it clear that the relocation provisions of the Divorce Act continue to generate significant confusion among family law practitioners and inconsistent application from the courts, including in cases involving family violence.
Relocation cases often unfold as presented above: the father defends the shared parenting status quo, the judge weighs the pros and cons of moving to a sole parenting arrangement, and no one realizes they are not even asking the right question.
Let us explain. The mother is an adult. She has mobility rights. She cannot be told by the court where to live. The court’s only job is to determine if she can relocate the child with her. Neither the father nor the court can assume that, if the child’s relocation is prohibited, the mother will renounce her relocation plans.
So here are the errors: comparing relocation to the shared parenting status quo is the wrong exercise because a relocation case means parents want to live in different cities. The question before the court is not whether there should be a primary parenting arrangement, but which parent should be the primary parent. When courts say no to the relocation because they want parents to share parenting in the current city of residence, they are saying no to the mother’s relocation, not the child’s. This is a serious but common error.
The other common error, which is related, is that in weighing the pros and cons of relocation, courts will often note that if the child’s relocation is authorized, they will lose parenting time with their non-relocating father — but ignore the fact that if the child’s relocation is denied, they will lose parenting time with their relocating mother! The deck is stacked against the mother, even if she has always been the primary caregiver, when courts simply assume (even if the Divorce Act prohibits this assumption) that the mother will renounce her relocation if the child’s is prohibited.
As we successfully argued in Friesen v. Friesen, this is the wrong way to go about answering the relocation question. Courts should assume that the parent who wishes to relocate will relocate and answer the question of which parent should care for the child in their intended city of residence. This means — although it is rarely understood or applied — that a mother’s request to relocate the child should only be denied if the court is prepared to grant primary parenting to the non-relocating father. It cannot be denied because the court would prefer the mother not to move and for the parents to continue to co-parent.
In other words, if the father wants to oppose the child living with the mother in her intended city of residence, he needs to provide a viable alternative. The viable alternative is “I can be the primary parent,” not “She should live where I want her to.”
This should make relocation an easy question in the cases where the relocating parent is already the primary parent. But it is well known that courts have a silent preference for shared parenting, and mothers who want to relocate can be seen as selfish for offending this norm. Therefore, it’s easier to say no, and order shared parenting despite the fact that the court does not have the power to tell an adult where to live.
Even in cases where the mother has over 80 per cent of parenting time, courts are still denying relocations in 14 per cent of the cases. Because courts assume the mother will renounce her relocation in order to co-parent, they often do not even realize that what they are doing is ordering parenting time reversals.
Bill C-223 would rewrite the relocation regime to clarify the question before the court and remove inequities in how relocating mothers are treated.
Find out how in part two of this series.
Suzanne Zaccour is a member of the Law Society of Ontario and the director of legal affairs for the National Association of Women and the Law, a not-for-profit organization that works to advance women’s rights in Canada through feminist law reform. Zaccour holds a doctorate degree in law from Oxford University. As a researcher, she has published academic papers in the areas of family law, violence against women, criminal law, and gender and language. Her work has been cited by the Supreme Court of Canada.
Joanne Moser is a family law lawyer in Regina. She has been practising primarily in the area of family law since 1994, conducting cases at all levels of court in Saskatchewan and at the Supreme Court of Canada. She is a recognized expert in the area of family law in Saskatchewan, having been engaged as an expert or presenter for a variety of institutions, including the Law Society of Saskatchewan, the CBA and the Saskatchewan Trial Lawyers Association (STLA). She is a member of the Law Society of Saskatchewan and the president-elect of the STLA.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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