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Family Law - Custody and access - Considerations - Best interests of the child - Capacity or conditions of parents - Primary caregiver - Expert report or assessment - Removal of child from jurisdiction

Thursday, August 18, 2016 @ 8:00 PM  

Appeal by the mother from an order dismissing her request to relocate to California. The parties were married in 2004. The mother had two children from a previous marriage. The father adopted the youngest child and stood in loco parentis to the older child. A third child was born to the parties in 2007. The parties separated in April 2011. Between April 2011 and February 2012, the father completely withdrew from the children’s lives due to depression. Following treatment and parenting coaching, the father gradually re-established a relationship with the youngest child. In October 2012, the mother commenced a relationship with an individual who resided in California. The couple became engaged in 2014. The mother took severance from her employment in Manitoba and obtained an offer of employment in California. Prior to the engagement, the mother met with the father to discuss her proposed relocation with the children, but did not disclose her proposed living arrangements. The father consulted with the parenting coach and decided to oppose the move. Meanwhile, the mother relocated with the children and registered them in school. Upon learning of the father’s opposition, she returned with the children. The trial judge refused the mother’s request to relocate as contrary to the children’s best interests based on their ties to Winnipeg and the risk of long-term harm arising from the likely disruption. The mother appealed.

HELD: Appeal allowed. The trial judge erred in introducing and relying upon academic child psychology articles at her own initiative. In addition, the trial judge erred in relying upon opinion evidence from the family’s parenting coach regarding those articles and other matters despite the fact that the witness was not qualified as an expert for the purpose of the trial. The trial judge’s error materially affected the outcome of the case and disentitled the decision to curial deference. Based upon the properly admissible evidence and existing law, it was appropriate to grant the mother’s request for relocation to California with the children. The mother had valid and reasonable reasons for the move supported by financial and romantic motivations. The older child was almost at the age of majority. Given the father’s mental health issues, the mother was likely to continue as the youngest child’s primary caregiver. Relocation was permitted pending agreement by the parties regarding the father’s access, failing which the issue of access would be returned to the trial court.