How have the courts treated testimony that the respondent mother gave to a trial judge that she would return to Canada for the sake of the children?

Prince Edward Island, Canada


The following excerpt is from B.(R.) v. P.(D.), 2009 PECA 12 (CanLII):

The trial judge was aware of the testimony that the respondent mother gave where she stated that she would return to Prince Edward Island for the sake of the children. The trial judge did not make any errors in his treatment of that evidence. Various courts have cautioned that it is problematic to rely on representations made by the custodial parent that he or she will not move without the children should an application to relocate be denied. This inquiry is commonly called the “classic double bind.” If a parent responds by stating they are not willing to remain behind with the children, this raises the prospect of the parent looking after their own interests and not having the interests of the children paramount . Then, on the other side of the equation, if a parent advises the court that they are willing to forego a move if unsuccessful, this suggests that such a move is not necessary for the well being of the parent or the children. If a trial 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. See: Spencer v. Spencer, supra.

In the case at bar, the trial judge approached the decision head on. He determined that the respondent mother did not have an improper motive in moving with the children to the province of Quebec. He concluded that requiring the petitioner to move back to P.E.I. would have a detrimental effect on the mother and that a happy parent is one who is more able to look after the needs of the children. What follows from this line of reasoning is that the trial judge approached the issue of relocation from the perspective of respect for a parent’s decision to live and work where he or she chooses barring an improper motive. See: Nunweiler v. Nunweiler. The trial judge did not err in his assessment of the factors involved or in making any of these conclusions.

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