Court Cases & Orders

Damned If You Do, Damned if You Don’t: Divorce Act Changes Eliminate “Classic Double Blind” Around Mobility

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Damned If You Do, Damned if You Don’t: Divorce Act Changes Eliminate “Classic Double Blind” Around Mobility

In the past months, we’ve been covering the important substantive changes to the federal Divorce Act, including those that aim to help resolve disputes around child-mobility issues.  These kinds of conflicts arise when (using the recently-replaced former terminology) the custodial parent wishes to relocate with the child against the wishes of the access parent.

In a recent case called Bourke v. Davis, the Ontario Court of Appeal recognized one of the important policy principles that drove some of the legislative changes in this area, even before the amendments were technically in-force.

The case involved Ontario-based parents who were recently divorced. Their dispute was over whether the court should allow the mother to move away with their two young children to the U.S., to join her new husband there (and she had recently had a baby with him). This would significantly impact the existing access rights of the father.

The mother had been granted permission to move by the trial judge, who concluded it would be in the children’s best interests, after taking many facts into account.  Among them was the mother’s sworn testimony that she was planning to move to the U.S. with the new baby regardless of whether the two other children were allowed to go with her.

brittany-w-lawyer

“The Appeal Court confirmed that the mobility decision involved considering numerous factors and goals, including the primary consideration of what was in the child’s best interests” – Brittany Whalen, Associate Lawyer

On later appeal by the father, the Appeal Court confirmed that the mobility decision involved considering numerous factors and goals, including the primary consideration of what was in the child’s best interests.  The Court noted that one of the elements to be expressly eliminated from the courts’ assessment, stemmed from what it called a “classic double blind”.

As the Appeal Court explained:

The [father] asserts that the trial judge erred in his analysis when he failed to consider the amendments to the Divorce Act which will come into force on March 1, 2021 and will include s. 16.92(2). The provision, once amended, will read as follows:

In deciding whether to authorize a relocation of the child, the court shall not consider if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

While this provision was not in force at the time of the trial, and is not yet in force, it is a fair submission by the [father] that s. 16.92(2) reflects Parliament’s view about the court’s approach to the moving parent’s intentions when considering the best interests of the child.

The Government of Canada website provides the following explanation for the s. 16.92(2) amendment:

Parents seeking to relocate with their children are sometimes required to answer in court the difficult question of whether or not they would proceed with a relocation if they were not permitted to bring their children. A response of “I won’t relocate without my child” may be interpreted as evidence that the proposed relocation is not sufficiently important and should not be permitted. A response of “I would relocate without my child” may be interpreted as evidence that the parent is not sufficiently devoted to the child.

This provision would prohibit courts from considering this question – or the parent’s response – if raised in the context of the court proceedings. This will assist in focusing on the specific legal issue before the court.

Parliament’s explanation of s. 16.92(2) reflects the “classic double bind” that has been recognized in the jurisprudence for many years. When the parent who wants to move with the children is asked whether they will stay in their current location should the mobility order not be made, the parent is immediately placed in a “lose-lose” situation. If they answer that they would stay with the children, it allows the court to fall back on the status quo and force the parent to remain when that result may not be in the best interests of the child. By contrast, if the parent says that they would go regardless, it allows the court to draw an adverse inference about that parent’s dedication to the children. The problematic double bind has led the courts to repeatedly discourage judges from relying on a parent’s representations about whether they will or will not move without the children …

The mobility-related changes to the Divorce Act, including the addition of section 16.92, are now in force as of March 1, 2021.  We will talk more about the decision in Bourke v. Davis in an upcoming Blog.

For the full text of the decision, see:

Bourke v. Davis, 2021 ONCA 97

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.