Note: The rules and law may have changed since this article was first published. It is provided for archival purposes but you should consult with your lawyer for the current state of the law
This article is re-published with the kind permission of the Saskatchewan Trial Lawyers Association
The predicament of reliability advising clients concerning custody and the mobility of their children has recently proven to be as challenging as ever. There are various types of motions and applications involving the mobility of children, some demanding more urgency than others. In one month alone, we had five interim mobility matters walk through the door, all entailing various levels of urgency. Of course, three were quickly resolved by Court Order. In our opinion, this is because both matters involved a family unit that looked very much like the traditional notion of the family unit. That is to say, each case featured a stay-at-home mom, a breadwinning dad and four or five children. The familiar situation in which the primary caregiver attempts to relocate with the children of a broken marriage creates conflicts that are among the most difficult to resolve. Case law in the area is not in short supply. Nevertheless, controlling principles can be challenging to work with because there is a sense that each case remains unique.
When a move is requested in the early stages of the relationship breakdown, it can be difficult for a Court to determine what is truly in the best interests for the children, especially on contradictory affidavit of evidence. For this reason, the Courts do not often allow children to relocate on an interim motion. Although they are bound to undertake intricate analysis of the circumstances surrounding the move and to consider the relationship of each parent to the children, the presumption id that the status quo of the locale is to be preserved. This presumption has stood the test of time, as evidenced by the statement of the Honourable Mr. Justice Smith at paragraph 10 of the oft-quoted Ofukany v. Ofukany, 2009 SKQB 234, (“Ofukany”) “those cases [allowing a move] are the exception and arguably turn on their own peculiar facts.”
It is difficult to achieve success in mobility motions on an interim basis. This is nothing new and the Court seems to have lost patience with hearing it. The Court itself advocates against fostering a culture of “move first, ask later.” Ofukany explains why at paragraph 11:
Allowing one parent to relocate with the children completely changes the familial landscape of the access parent. In my view, given the profound change such a move creates, the issues relating to that proposed relocation can rarely by satisfactorily weighed by affidavit evidence. Only at trial can the issues and considerations be fully developed and considered.
 In my opinion, there is a presumption, albeit rebuttable, that the children in mobility cases should remain in the locale of the status quo until the debate proceeds to trial to be fairly determined.
This statement encapsulates the presumption that children will be ordered to remain in the place of their habitual residence on an interim motion; however, it also speaks simply to the importance of preserving stability. It is as much a statement of the premise that parents should do the utmost to maintain stability in their children’s surroundings and connections while they navigate the shoals of divorce, as it is about prohibiting relocation. Therein lies the problem because the argument on the moving parent’s side also rests on the preservation of stability. The tension between the competing sources of stability becomes a prominent force of instability and plays itself out in a most predictable manner.
Although not exclusively, it has been our overwhelming experience that we encounter moms seeking the Court’s permission or forgiveness for moving the children, while fathers are left behind. Imploring the Court to ensure the children remain or return. He builds an army of church goers, community members, and teachers and coaches. In desperation, and often self-defence, he arms himself with affidavits proclaiming his attributes and provides a walk down memory lane. He describes the children’s friends. Teachers, and teammates and connects them to their bedroom, their toys and school. He is supportive and steadfast. He coaches the baseball team. More often than not, he puts forth his mother and additional family as additional sources of support, along with a host of secondary volunteers. He lists a daycare and names the after school program. He relies on the familiarity of the family home and school, refers to the children’s relationships with friends and relatives and describes the predictability of their daily schedules.
The mother provides the same onslaught of evidence, but all of it goes to illustrate how central she is to the children’s lives. She wakes them, clothes, bathes and organizes them. She comforts them when they cry and engages them in discussions about their feelings. She volunteers in their classrooms. She, too, had a support network, usually comprised of family, and her argument is that the children are emotionally in need of her. After, has developed to capture the emotional superiority of this relationship: she is the psychological parent. The argument is that a mother is so central to the children’s lives and they are so dependent on her that it would be contrary to their best interests to order a change in custody and sever the tie with that psychological parent; that disallowing the move will actually infuse the environment with greater instability and result in psychological trauma to the children.
The Balancing Act – Who Can Offer “More Stable” Stability:
Generally, a determination that one parent is the psychological parent is not, on its own, enough to justify a move on an interim basis. The Court of Appeal commented on the status of the psychological parent at paragraph 89 of Haider v. Malach (1999), 177 Sask. R. 285:
Although this court has not and nor could it elevate this principle to an overriding or controlling one, it is an important factor in determining where the best interests of a child lie.
As stated in paragraph 50 of Gordon v. Goertz,  2 S.C.R. 27:
In the end, the importance of the child remaining with the parent to whose custody it had become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community.
Again, inherent in the test are these competing claims to stability. The two positions have become entrenched and have come to be expected.
The obvious problem with basing the test on who is the primary caregiver or psychological parent is that doing so would decide the majority of cases before they were heard. It would give extraordinary power to the primary caregiver and pose an obstacle to future settlements. In most cases, one party is clearly the primary caregiver and a designation of psychological parent usually follows. In theory, if this is all there is to the analysis, the status quo should prevail. For that reason, it is important that Courts do not give the impression that a designation of psychological parent will win the day, and they have been careful to guard this duty. Judges seems eager to cut to the chase, and are often quick to say so. They want to get to the crux of the matter, and the crux of the matter is whether mom has a compelling enough reason to rebut the presumption that the children should remain in the locale of the status quo.
The Rebuttable Presumption
In order to properly carry out a balancing act based seemingly on stability, the Courts have made clear that they will not sanction just any move, even those where a primary caregiver or psychological parent is designated. Rather, the Courts have stated that when a primary caregiver attempts to remove the children from the setting they know and rely on, there must be a compelling reason for doing so. What then is so compelling that it qualifies as an extraordinary circumstance and justifies interrupting or serving the relationship with the parent who stays behind? It is not the mere existence of an employment or educational opportunity, but either of those may be a compelling circumstances; it is not isolation resulting from living in rural community or a province away from one’s family; it is not that the children are estranged from the parent left behind, though that may be a factor in some cases.
What then, seems to be the deciding factor in apparently contradictory cases? Using the two cases referred to at the outset as examples, the Courts appear to be looking for a reason to allow the move, and that reason appears increasingly dependent on the primary or psychological parent designation. In one of the twp cases (“Case A”), we acted for the mother – the children were ordered to return. In the other case, we acted for the father (“Case B”) – the children were ordered to move. The facts were nearly identical, so what explained the difference? Practically speaking, there were very few differences between the cases. There were five children in Case A and four in Case B, and the youngest child was under the age of two in both. In both cases the father was the sole income earner, working overtime to maximize his financial contribution to the family (more so in Case A than Case B); the mother was highly involved in all aspects of the children’s lives, from school to soccer. In both cases, the father was a loving parent who was as involved as possible in his children’s lives, outside of working hours, but whose time with the children was limited by the need to support the family financially.
In situations such as these, the Courts have expressed concern about the competence of fathers to run the household full time. In both Case A and B, the concerns addressed came down to details about each father’s capacity to clean the house or fill the fridge with groceries with several children on his hands. In this scenario, providing for one’s family becomes a liability, something to be used at the breakdown of a marriage. If the father is out of the house working for eight or ten hours per day, how can that parent even attempt to argue of the basis of primary caregiver? He cannot. The greater the number of children or the younger the children are, the more difficulty the Courts seem to have concluding that the father is capable of managing. Whether it involves getting the children to school or putting them to bed, tasks and chores that were once a routine in the marriage become suspect.
The father’s ability to simultaneously manage the household and the lives of several children becomes more problematic still if there is any hint of difficulty managing anger. There was no threat to the children in either Case A or B, but in Case A, the father admitted in his affidavit to yelling at the children and to being involved with a counsellor to develop anger management strategies. In Case B, the father admitted to approximately one outburst for each of the six years of marriage, none of them involving the children and all of them spread out over the years. The mother’s departure took place the day after such an outburst in which the father threw a food item at the wall. The children were not present. There was a wait to get in for counselling, so the father had enrolled in anger management before the week was done in an attempt to prove his commitment to the marriage. Lawyers were not yet involved.
Naturally, we argued strenuously in Case A that the father’s difficulty containing his frustration over the course of the marriage ought to give the Court cause for great concern when considering whether to designate the children’s primary residence with him. We focused on the fact that his outbursts were directed at the children. In case B, we argued that the notion of justifying the sudden move of four children because their father threw a food across the kitchen when they were not present was preposterous. Surprisingly, yelling at the children did not appear to cause the Court any concern whatsoever in Case A and the children were ordered back to the father’s care if the mother chose not to return. However, anger management issues were cited as one factor justifying the relocation of the children in Case B.
In both cases, the mother’s move was a unilateral and hasty decision. In Case A, the Court addressed its concern about this at the outset, even before counsel had spoken. In Case B, the Court indicated that whether the move was unilateral or precipitous or surreptitious was of no concern. Neither mother was moving towards an employment or educational opportunity and there was no new boyfriend behind either move. Rather, in both cases, she was moving away from a small rural community where alternate accommodations can be hard to come by, and gravitating toward her family of origin.
In recognition of their inherent disadvantage, fathers have begun offering up the family home as a bargaining chip on the event the mother is ordered to return the children and she elects to accompany them. Doing so eliminates several potentially compelling circumstances and hands a solution to the court. In most cases, ordering the children back to the family home has the potential to accomplish some or all of the following:
- It allows the children to stay in or return to a familiar environment and all of their belongings;
- It cuts back on expenses and increases the cash flow available to the family unit;
- It allows the children the maximum amount of time available with both parents;
- It allows the children to return to or continue in school and to get caught up on what they have missed;
- It prevents an interruption or allows the children to reconnect with their friends and extended family members;
- It allows the children to continue their extracurricular activities;
- It allows legal proceedings to continue through the usual channels so that the best interests of the children can be thoroughly explored and determined;
- It prevents the relocating parent from gaining a tactical advantage that often leads to an unintentionally final determination of the matter.
An offer of the family home is often accompanied by a commitment to financial support and a concession of the primary caregiver designation, which is often the most desirable result. The solution provides the mother with some autonomy and her own space, it maintains the children’s connection to what is familiar and it preserves the children’s bond with their father.
In both cases A and B, the father offered up this tactical solution. In Case A the Court ordered the mother to return. In Case B, however, the Court ordered that the children would be primarily resident with their mother in the new location. The only significant difference between the two cases that we can identify is a strategic manoeuvre that occurred in Case B: just before Noon on the day before Chambers, the mother filed a succinct affidavit that was not a reply and not required, but which was ultimately admitted into evidence, wherein she deposed she would not return to the family home even if the children were ordered to do so. Her Brief of Law alluded to the existence of some academic discourse about the “catch 22” facing custodial parents wishing to move. The argument was that if the mother agrees to return to the family home, the battle is lost, but if she refuses to return to the family home, she is characterized as acting contrary to the children’s interests. She is caught in a no-win situation.
Apparently, possessing the knowledge that the mother will not under any circumstances return to the children’s habitual residence forces the Court back to its analysis of the children’s best interest. It seems clear that in such a case the Court will make an order that preserves control for the parent who has been in charge of the children’s daily lives. What emerges is that despite previous attempts to limit the number of children moving on an interim basis and to insist that a designation of primary or psychological parent is not determinative, that designation is very likely to trump all else when the Court is presented with such an ultimatum. Notwithstanding the rule in Ofukany, which is clear on its face, the rule may be honoured as much in its breach as in its observance.