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CUSTODY AND ACCESS - Considerations - Best interests of child - Primary residence - Removal of child from jurisdiction - Practice and procedure - Appeals

Monday, October 30, 2017 @ 9:15 AM  


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Appeal by the father from a summary trial order permitting the mother to relocate from British Columbia to England with the parties' child and a subsequent order refusing to reopen the trial. The parties were both born in England and their extended families resided in England. The parties met in England in 2011. The mother took leave from a teaching job to reside with the father in Ymir, British Columbia. The relationship initially did not work and the mother returned to England. She returned to Canada after learning she was pregnant. The parties married in July 2013. Their child was born seven months later. The parties separated in August 2014, parenting equally thereafter. The mother relocated to Nelson, approximately 20 minutes from Ymir. She was unable to obtain teaching work in British Columbia and sought to return to England with the child. The father worked as a self-employed outdoor educator. He maintained that his best career opportunities lay in British Columbia rather than England. It was agreed that each parent was capable and the child was happy and well-adjusted. The summary trial judge concluded the child's best interests were consistent with granting the mother permission to relocate based on the mother's superior employment prospects in England. The father sought to reopen the trial based on fresh evidence of the mother's newly enhanced employment prospects within Nelson. The judge found the proffered evidence did not overcome the conclusion regarding the mother's superior employment prospects in England. The father appealed both the relocation and reopening orders.

HELD: Appeal allowed. The judge misapprehended the proffered fresh evidence regarding the mother's teaching prospects in British Columbia. That misapprehension went to the foundation of the reasoning process underlying the original order. Permission to relocate was granted on the basis the mother's employment opportunities were unlikely to improve and her superior prospects in England. The proffered fresh evidence directly addressed those considerations in a cogent and material way, impacting on the assessment of the child's best interests. In addition to misapprehension of the evidence, the judge erred in principle by allowing the relocation application in the absence of evidence that the child’s best interests would be better served in England than in Nelson. There was no evidence linking the mother's financial and emotional circumstances in Nelson to the child's best interests. The decision erroneously equated the mother's interests with the child's interests. The Court exercised its discretion to dismiss the mother's relocation application and order shared parenting, consistent with the trial judge's conclusion that such an arrangement was ideal with the least amount of disruption for the child.

Hellberg v. Netherclift, [2017] B.C.J. No. 2075, British Columbia Court of Appeal, R. Goepel, G.J. Fitch and Hunter JJ.A., October 20, 2017. Digest No. TLD-October302017001