The Court Will Take What it is Given – CC v SPR Overview

The Court Will Take What it is Given – CC v SPR, 2023 BCCA 422

• The parties are former spouses and share one son. Their son was born in 2016 and they separated in 2019.
• The mother has applied for a relocation order allowing her to move from Vancouver to Kamloops, where she is from and has extended family.
• The father is from Sri Lanka and moved several times before landing in the Lower Mainland.
• In 2020, the mother took the parties’ son and her new daughter from another relationship and moved both children to Kamloops, refusing to allow the father any contact with his son.
• In a 2022 trial proceeding, the judge held that it was in the son’s best interests to remain in the Lower Mainland with his father and be enrolled in school there.¹
• In a second 2022 proceeding, the judge found that a prenuptial agreement that denied the father any claim to the parties’ previously shared townhome to be valid.
• Now, the court is reassessing the relocation application made by the mother.

Why This Decision is Important

As of the 2019 amendments made to the federal Divorce Act,² which govern relocation, a relocation application does not have to consider all four custodial scenarios as set out in SSL v JWW.

Now, the court will consider a relocation application in light of section 16.92 of the Divorce Act.

History

The Court of Appeal in BC found in a 2010 case³ that when considering a relocation application, the court must analyze the evidence in four possible scenarios: i) primary residence with the mother; ii) primary residence with the father; iii) shared parenting in the current location; and iv) shared parenting in the new location.

In that same case, it was stated that “when the court finds the best interests of the children require both parents to be in the same locale, then the court will need to choose between the shared parenting options offered by the parents.” Further, the court there made clear that choosing the existing location cannot be the default position.

Prior to the amendments, the Divorce Act was silent on relocation. The court routinely faced challenges when there were ‘two good parents’ and those parents agreed that shared parenting would be their ideal scenario, were they to reside in the same city.

This four-scenario approach was intended to avoid the ‘double bind’ scenario. In that conception, a parent is punished whether or not they say they will not remain behind with their children if their relocation application is not accepted. This is because they are seen to either put their own interests ahead of their children’s’ (if they say they will move regardless of the outcome), or they are seen to not be serious in their desire to move (if they say they will stay behind).

As of 2019, the Divorce Act covers relocation, and provides a list of factors to take into consideration in order to determine what is in the best interests of the child.⁴

Now, judges are to consider the list of factors provided in the Act to determine if a relocation is in the best interest of the child, rather than abstractly considering the four scenarios set out in the 2010 case.

Case Details

In this case, the only two options presented to the court were that S (the son) would reside primarily with his father in the Lower Mainland, or primarily with his mother in Kamloops. In this instance, the court would not have been able to consider all four custodial options in any event.

The judge ultimately found three reasons to order the S stay in the Lower Mainland. He cited stability and consistency for S, the risk that the mother and her family would not support and maintain S’s relationship with his father, and the risk that they would deny S’s cultural and racial heritage.

Family law — Children — Mobility rights — Maintenance — Interim maintenance 

Outcome

S is ordered to continue to reside in the Lower Mainland, due to concerns about safety, stability, and relationship maintenance with his father.

Both parents were given the right to decide where he attends school.

Key Takeaways

• Courts no longer consider abstract custodial scenarios when faced with a relocation application from one parent.
• Now, they will consider the options set out for them in light of the facts enumerated under section 16.92 of the federal Divorce Act.
• Section 16.92(2) precludes the court from putting one parent into the ‘double bind’ scenario, thus giving them an impossible choice.

References

1. CC v SPR, 2022 BCSC 1503 (CanLII)
   https://canlii.ca/t/jrp7h ↩︎
2. Divorce Act, RSC 1985, c 3
   https://canlii.ca/t/566hk ↩︎
3. SSL v JWW, 2010 BCCA 55 (CanLII)
   https://canlii.ca/t/27vgk ↩︎
4. Supra note 2 ↩︎

The Legal Review Process by Spectrum Family Law

• Spectrum strives for high-quality, legally verified content.
• Content is meticulously researched and reviewed by our legal writers/proofers (usually local law students).
• Details are sourced from trusted legal sources like the Family Law Act.
• Each article is edited for accuracy, clarity, and relevance.
• If you find any incorrect information or discrepancies in legal facts, we kindly ask that you contact us with a correction to ensure accuracy.