The Forbidden Question in Mobility Proceedings
Unless there is express consent from the other parent, a party seeking to relocate with children must bring a mobility application before a judge or arbitrator. Mobility is a highly litigated area of the law, which carries with it a high emotional toll for all parties involved. In the midst of that emotion, a common question raised by the non-moving parent is this: If my ex-spouse is not permitted by the Court to move with the children, won’t he or she just cancel the intended move altogether? While this may seem like an obvious question to some, it is not a proper question in law. The question, coined the “classic double bind” by our Court of Appeal, is forbidden in mobility proceedings.
In the Alberta Court of Appeal decision Spencer v Spencer, 2005 ABCA 262, the Appellant Mother sought permission from the Court of Queen’s Bench to move with the two children of the marriage to Victoria, British Columbia, to live closer to her new partner’s family and pursue an employment opportunity. The Mother had been the primary caregiver for the children since separation, and the Respondent Father had limited access to the children. When the initial Application was heard, the Mother represented to the Court that if she was not permitted to move, she would stay in Alberta with the children. The Court relied upon that representation, among other factors, in deciding against the Mother and not allowing the move to Victoria with the children.
The Court of Appeal overturned the lower Court’s decision, and paid particular attention to the Mother’s predicament in voicing her intention to stay in Alberta if she was not successful in her Application. The Court of Appeal stated the following at paragraph 18:
In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move without the children should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classic double bind. If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of being regarded as self interested and discounting the children’s best interests in favour of his or her own. On the other hand, advising the court that the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggesting that such a move is not critical to the parent’s well-being or to that of the children. If a judge mistakenly relies on a parent’s willingness to stay behind “for the sake of the children,” the status quo becomes an attractive option for a judge to favour because it avoids the difficult decision the application presents.
As per the law set out above, it is improper in law to ask the “double bind” question of a moving parent in mobility proceedings. Whether or not the party opposing the move believes the following is unrealistic, the analysis in mobility proceedings is based on the understanding that the party requesting move will certainly be moving, with or without the children. This leads a judge or arbitrator to consider whether the children’s interests are best served by them living in the primary care of the moving parent in the new location, or transferring them into the primary care of the other parent remaining in the jurisdiction.
Soby Boyden Lenz Family law carries a wealth of experience in matters relating to mobility and relocation. If you have any questions or require a more detailed discussion of this post, please contact 403-262-0000 to schedule a consultation with one of our experienced family law lawyers.