Relocating with a Child – Can Courts Assume Some Parts of the World are Dangerous?
A certain category of family law cases involve what are known as “mobility” disputes, which focus on deciding whether one separated or divorced parent may move away with a child to a new location – one that is not conveniently close to the other parent in terms of their being able to exercise their custody and access rights.
Frequently in such cases the other parent will object to the move on various grounds, so the matter will go before the court for its determination. At the hearing, the objecting parent can then put forward evidence on why the proposed move is not in the child’s best interests. In many cases, this takes the form of documents and other materials showing that the proposed location or country is unsafe for the child, either because the child would be returning to an unhealthy family environment, or because the country is plagued by war, violence, crime or persecution of certain ethnic groups.
This in turn raises questions about the type of evidence that can be put forward, how it is to be received and assessed, and whether the court can rely on its own “common knowledge” to assume that some parts of the world are inherently dangerous. In other words, in these modern times of Google searches and collective-authorship Wiki articles, it becomes important for a court to be able to vet the information it is provided.
This was precisely the issue in a recent case called B.T.O. v. A.A., 2013 ONCJ 708 (CanLII) where the mother wanted to relocate with the child back to Nigeria. The father wanted to provide the court with evidence to establish that, due to the significant crime levels, kidnappings, and other safety and health concerns, a move back would to that country put the child at significant risk.
The court was left to grapple with assessing the father’s evidence, which included newspaper reports and internet articles about Nigeria, as well as reports from the U.S. State Department and Canadian government that identified travel concerns.
While pointing out that each case was unique, the court concluded that the government reports – despite amounting to hearsay – were sufficiently reliable to be admitted even though the mother had not had a chance to cross-examine on them. The newspaper and internet articles, on the other hand, did not meet this test.
(And ultimately, after taking into account all of this contentious evidence, the court allowed the mother to move to Nigeria, pointing out among other things that, “[d]espite his security concerns, the father permitted the children to travel to Nigeria on several occasions while he lived with the mother. He has travelled to Nigeria on several occasions and has not experienced any safety issue on these trips.”).
For the full text of the decision, see:
B.T.O. v. A.A., 2013 ONCJ 708 (CanLII) http://canlii.ca/t/g2dxf
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