A CASE STUDY:Pepin v. McCormack 2014 BCSC 2230

Registry: Vancouver Supreme

Judge: Mr. Justice Kent

Date: November 27, 2014

Legislation: Family Law Act Part 4, Division 6 (s.65 (2) (b)); 69 (4) (a) and (b) and Part 4, Division 2 (s.46)

Main issues:   Relocating a 4 year old to Scotland from Vancouver

Also at issue was whether s. 65 or 46 of the Act applied. The court found that a judicial case conference order, interim order, did constitute an order and section .65 of the FLA was the applicable section to apply to the case at hand

 Outcome: The Claimant, mother, was successful

Facts:  The Claimant, mother, and Respondent, father were never married. The mother sought to move her 4 year daughter, Madeleine, from Vancouver to Scotland. In terms of the claimant’s background, the father, was 43 years old, had a grade 10 education and had received an honourable discharge from the Canadian Armed Forces in 1997 following which he held a number of part-time, short term jobs with periods of unemployment. The mother, a nurse, had been recruited to Canada from Scotland by Vancouver Coastal Health in 2007. The parties earnings over the years are illustrated as follows:

In 2012, the parties agreed that the Claimant would travel to Scotland with Madeleine to care for the Claimant’s sick mother. It was during this stay that the Claimant decided she would not be returning to Canada. The Claimant secured a full-time nursing position in Scotland, working 9-5 hours, hours unlike what was available to her as a nurse in Vancouver. While in Scotland, the Claimant and Madeleine were living with the Claimant’s mother in a “stone mansion”.

The Claimant and child returned to Canada in compliance with a Hague Convention order in 2014. Upon returning to Canada the Claimant secured a part-time job at a retail store. If she worked as a nurse in Vancouver, working 12 hour shifts, she would need daycare during the day and an overnight/ weekend nanny to accommodate her schedule. The Respondent was working as a labour contractor on a part-time basis. The Respondent did not get along with his parents and was renting with roommates which led him to cancel overnights with his daughter. Justice Kent sums up the Respondent’s parenting as follows: Ms. McCormack opines that Mr. Pepin is not a bad father but she is of the view that he is somewhat unreliable, which is probably a fair characterization on the facts of this case.

Discussion:

As there was unequal parenting time between the parents Justice Kent summarizes the applicable issues as follows at paragraph 66, pg 17

…the “decision tree” mandated by s. 69(4)(a) and (b) of the Act is to determine the following questions:

(1) Is the proposed relocation made in good faith?

(2) If so, has the relocating parent proposed reasonable and workable arrangements to preserve the relationship between the child and his/her other parent and significant others?

(3) If so, has the non-relocating parent satisfied the court that deeming the relocation to be in the best interests of the child is inappropriate?

The court found the Claimant’s desire to move was in good faith, she continued to foster a relationship between the Respondent and their child, she proposed reasonable and workable arrangements (para 84) for contact to continue, there were work opportunities and government support and benefits (e.g. free daycare) which were not available to the Claimant in Vancouver and she could live rent free with her mother.

The Respondent did not satisfy the court that the relocation was inappropriate.

Comments: The father in this case appears to be a loving father, however the mother’s opportunities in Scotland far exceeded her opportunities in Vancouver and the father’s abilities to provide for the child in Vancouver.

The court commented that there was no one in Vancouver other than the Respondent that had a significant role in the child’s life.

There was some interesting commentary on lack of expert evidence with respect to the involvement of both parents and father’s in particular at paragraph 82:

There could well be a body of social science research which indicates young children with involved fathers may be more sociable as infants, have a greater capacity for empathy, have better peer relationships, and have fewer behavioral problems. But no admissible evidence to that effect was tendered in this cases…