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CUSTODY AND ACCESS - Removal of child from jurisdiction

Tuesday, July 16, 2019 @ 8:47 AM  


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Appeal by the mother from the dismissal of her application to allow her to move with the parties’ five-year-old child from the interior of BC to the Lower Mainland for purposes of obtaining a university degree necessary for anticipated employment as a probation officer. The mother had primary care since the parties’ separation in 2015. The child was born in 2014. The mother returned to part-time employment as a house cleaner shortly after the child was born. Although she completed a College diploma program, she reached the point in her studies where she must attend a university to secure the necessary degree for her career goal. She was accepted to a university program in the Lower Mainland and qualified for bursaries and scholarships and student loans. The mother advanced a plan that would have allowed for continued parenting by the father, but to a different schedule.

HELD: Appeal allowed. The application was allowed. The judge’s approach of focusing on the benefits of the status quo, in failing to consider the mother’s proposal against the father’s proposal, and in focusing on the need for the mother to attend University in person, reflected a fundamental misapprehension of the court’s task. By focusing his attention on the short-term impact of the move on the child’s relationship with his father, the judge failed to incorporate his own conclusion that any dramatic and sudden change to the mother’s role in the child’s life could be expected to have adverse effects on the child’s well-being and failed to reflect that the mother had been the primary caregiver. The judge effectively excluded the question as to whether it was in the child’s best interests to live with the mother in the arrangement she presented to the court or with the father in the arrangement he presented to the court. By expressly contemplating orders that would have a significant impact upon the parental relationship, the Family Law Act demonstrated that it was not positioned either for or against change. By directing his attention to whether online education, in time, would provide an adequate education to enable the mother to obtain better employment opportunities, the trial judge intruded into the mother’s self-determination that the quickest, most cost effective, most learning-effective, and broadest education would be achieved by in-person attendance at the University.

Duggan v. White, [2019] B.C.J. No. 1010, British Columbia Court of Appeal, M.E. Saunders, H. Groberman and J.J.L. Hunter JJ.A., June 6, 2019. Digest No. TLD-July152019006