Mobility — Views of the Child

By: Philip Epstein

Kelly v. Harvey, 2014 CarswellNS 811 (N.S. S.C.):

This judgment by Justice Theresa Forgeron of the Supreme Court of Nova Scotia permits the mother of two boys aged 14 and 10 to relocate from Nova Scotia to British Columbia. The mother has formed a new relationship and wants to relocate to British Columbia to work and live with her new partner. The father who has regular access but not much overnight access opposes the move and suggests that he become the primary parent. Justice Forgeron finds lots of problems with the idea of the father becoming the primary parent and ultimately approves the relocation. I comment on this case for only one reason. Justice Forgeron lists all of the headings that emerge from Gordon v. Goertz, 19 R.F.L. (4th) 177 (S.C.C.) and that require discussion. Under the heading "Views of the Children" Justice Forgeron says as follows:

The court has no independent evidence about the views of Matthew and Austin in relation to the relocation application. This factor is therefore neutral.

Perhaps this case overall was not a close call and frankly from the evidence it does not seem that it was. Nevertheless, I am somewhat surprised and frankly taken aback that the Court would not find a way to elicit the views of children who were 14 and 10. Nova Scotia as a province in Canada is party to the U.N. Convention on the rights of the child and as such, as Justice Martinson eloquently pointed out in G. (B.J.) v. G. (D.L.), 89 R.F.L. (6th) 103 (Y.T. S.C.), it was incumbent upon the Court to ascertain the wishes and preferences of the children if they were of an age and maturity where their wishes should be taken into account. It may be that the 10-year-old's views would not have an overall effect, but certainly one would have thought that the 14 year old's views would have a very significant impact. It was apparent from the evidence in this case that there was somewhat of a strained relationship between both the boys and their father. There is no evidence here or discussion of alienation, gatekeeping, or estrangement, but there is a discussion of the fact that the youngest boy spends no overnights with the father and the oldest boy infrequently. Perhaps Justice Forgeron considered that if the children's views were ascertained in some fashion it would only be to reinforce the idea that the mother should be permitted to relocate to British Columbia.

Justice Forgeron assumes throughout that if the relocation is refused the mother will move to British Columbia and the father will become the primary parent. I gravely doubt that this would have occurred given the extremely close relationship between the mother and the two boys. Whether the mother is going to stay or go is not supposed to be an issue that the Court considers and certainly Justice Forgeron did not get caught up in that no win situation for the mother. It is relatively settled law that it is improper to ask the relocating parent whether they will stay if the relocation is refused as it presents the witness with an impossible choice. The mother had a good case here for relocation and given the somewhat strained relationship between the father and the children this relocation was permitted. Justice Forgeron went on to order joint custody and created a multi-directional order so that the father's access rights would be protected in British Columbia.

I am surprised that counsel would not have tried to lead some evidence of the children's wishes in some appropriate fashion and I am surprised the case concluded without any of that evidence being before the court. As I said, I suspect that all of this occurred because the mother had a rather overwhelming case for the right to relocate with the children.