Law Times

Law Times • sepTember 18, 2017 Page 7 www.lawtimesnews.com Argument over who primary caregiver is rekindled BY MARTA SIEMIARCZUK A n age-old argument around who a child's primary caregiver is was recently rekindled in the Court of Appeal. The case, Por- ter v. Bryan, 2017 ONCA 677, dealt with mobility rights and the parents of a five- year-old boy. In Porter, the parents had separated in 2015. They then entered into a consent order in the summer of 2016, where they would enjoy joint custody and a shared residential schedule for their son. The or- der was without prejudice to the mother's ability to seek the court's permission to relocate with the boy from Cochrane to Thunder Bay, Ont. The reason for the mother's desire to relocate was a lack of suitable employ- ment in Cochrane, where the mother and father were living. The mother worked as a prisoner transport officer, and she had been temporarily accommodated by her employer with respect to her shifts in order to facilitate her parenting duties. However, she was then told the accom- modation was no longer feasible and she had to resume unpredictable shift work and overtime. Ultimately, she resigned and tried to find another job in Cochrane without success, although she did find suitable employment in Thunder Bay. At the initial motion, Justice Donald Gordon decided that the disruption to the child in moving away from his father was not offset by the mother's need to secure employment elsewhere. He also held that the mother would likely suc- ceed in finding something suitable in the Cochrane area if she made more efforts, al- though perhaps not in her preferred field. Ultimately, her request was denied at the initial motion, but it was later granted by the Court of Ap- peal. Mobility cases are diffi- cult, but they are fairly com- mon. What makes this case unique and noteworthy is that the court has considered the primary caregiver test in the context of a shared parenting regime. One of the mother's primary argu- ments was that despite the joint custody and shared parenting situation, she was nonetheless the child's "primary caregiv- er" and, therefore, the approach noted by the Supreme Court of Canada in Gordon v. Goertz should apply in this case by giv- ing the mother's decision to relocate sig- nificant deference. The passage relied on from Gordon v. Goertz is ". . . the views of the custo- dial parent, who lives with the child and is charged with making decision in its interest on a day-to-day basis, are entitled to great respect and the most serious con- sideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect . . ." In considering this passage, Gordon concluded that in a case of joint custody and shared parenting where a child lives fairly equally with both parents, one cannot ap- ply the above principle to one parent's views over the views of the other. The Court of Ap- peal held that it was an error to make such a conclusion without a full assessment of the parenting evidence, and that shared parenting does not foreclose the potential to still have a "primary caregiv- er." The Court of Appeal re- viewed the record and found that on the evidence before the court, from questioning as well as affidavits, that the mother was indeed the child's prima- ry caregiver. On that basis in large part, the court found that Gordon erred by disallowing the mother's relocation request, over- turned the motion judge's decision and permitted the relocation. Family law practitioners are well aware of the back and forth that happens when parents attempt to show they were or are a primary caregiver, and how entrenched positions can become. Most often, it's not a pleasant situation in which to be, for parents or counsel. This decision has added a new layer to the debate, and legiti- mately so. Shared parenting does not equate to equal parenting or caregiving. Parenting involves much, much more than simply having your home available for a child half of the time. There is a plethora of re- sponsibilities that go along with parent- ing, such as researching, planning and registering for activities, co-ordinating play dates and birthday parties, find- ing and keeping child care, making sure those school forms (which seem to come fast and furious these days) are filled out, that haircuts are obtained reasonably regularly, that homework is done and that medical and dental checkups actually happen once a year. (It also means that the banana in the school lunch goes into a banana holder and not just in the lunch bag to be squished into oblivion.) The list goes on. That is the stuff of caregiving and what needs to be considered in an analysis of what is a primary caregiver. Many families are in shared parenting situations, yet, still, one parent deals with all of the above and more, while the other does not. While in this particular case it is entirely unclear what the actual parenting evidence was before the courts, as neither the lower court nor Court of Appeal enu- merated any specific facts, the principal recognized by the Court of Appeal in this case is certainly a meritorious one and should be borne in mind, particularly for those dealing with a Motion to Change a parenting order. LT uMarta Siemiarczuk is a lawyer practis- ing family law litigation and collabora- tive family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca. Consider research when it comes to polyamory BY REBECCA BROMWICH T his July, in R. v Blackmore, 2017 BCSC 1288, a Canadian court rendered the country's first polygamy convictions in more than a century. There can be little doubt that convictions rendered against breakaway FLDS Mormon polygamists Winston Blackmore and James Oler were a correct application of the current law, laid out in s. 293 of the Criminal Code of Canada. However, a larger and more timely question is whether that law should be changed. Whether criminal justice policy-makers should reform the provision be- fore a likely Charter challenge makes its way through the courts is a live question. In contemplating whether law reform is appropriate in this area, criminal lawyers, policy-makers and the public in general should bear in mind the knowledge and experience of family law re- searchers and lawyers. The growing numbers of clients in polyamorous relationships encountered by lawyers who practise family law are relevant to any social policy discussion of when consensual conjugal relations between adults should be criminalized. The decision of Justice Robert Bauman in Brit- ish Columbia's Constitutional Reference Re: Polygamy 2011 BCSC 1588 concluded in very simple terms that "there is no such thing as good polygamy." The deci- sion accepted rather uncritically an assumption that monogamy is, in contrast, good. Neither of these as- sumptions is generally borne out in the experience of practising family law. In insisting on the centrality of monogamy as an underpinning of the egalitarian west, the Reference decision may be overly romantic. There is a growing disconnect between the emphasis placed on monog- amy in the reasoning of the polygamy reference and the centrality of monogamy to Canadians' notions of family as well as the place of monogamy in a growing number of people's lived realities. As is well known to family lawyers, families are complex and peoples' lives are complicated. Consensu- al, non-marital, polyamorous relationships proliferate in Canada, and they are not limited to the context of breakaway FLDS Mormons in Bountiful, B.C. They are also not limited to the paradigm of one man and sev- eral women (polygyny) but also extend to one woman and several men (polyandry). They are as plausibly bo- hemian as they are fundamentalist. A report from the Canadian Research Institute for Law and the Family, "Polyamorous Relationships and Family Law in Can- ada," details the legal distinction between relationships that are polyamorous and marriages that are bigamous and polygamous. It further addresses how polyamorous relationships are (and are not) accommodated by the domestic rela- tions legislation of Canada's common law provinces. Most significantly, the report provides statistical con- firmation of what many family law lawyers already an- ecdotally knew — in Canada, as in the United States, there are a growing number of polyamorous relation- ships. Indeed, the report recommends that focusing in on polyamorous relationships can prove a growing niche practice for family law practitioners. On a review of the CRILF research, the insistence by the court in the polygamy reference on the centrality of monogamy to western society seems discordant with people's stated practices and perceptions. The CRILF research findings are that, in Canada, the concept that "family is now thoroughly unmoored from presumptions about marriage, gender, sexual ori- entation, reproduction and childrearing; the notion that romantic relationships, whether casual, cohab- iting or connubial, must be limited to two persons at one time may be the next focal point of change." It also says that the "scant data currently available on polyam- orous relationships suggest that the number of people involved in such families is not insignificant and may be increasing." The language of s. 293 gives the state sweeping pow- ers against people living in polyamorous relationships. It carries the potential to criminalize women as well as men. This legal authority is, at a minimum, anom- alous, where families are defined under Canadian laws and popular culture in diverse and inclusive ways. For example, Canadian laws permit multiple peo- ple, even folks who are "co-mammas" as simply col- laborating friends, co-parenting outside of a conju- gal relationship, to be legal parents. In the family law context, persons who entered into plural marriages in other jurisdictions, where they were legal, can receive some protection and benefit from the family law. Fur- ther, reproductive technologies now allow more than two people's DNA to be brought into one fetus (as is the case using mitochondrial replacement therapy, currently prohibited in Canada). Increasingly, the assumption that all relationships are monogamous, and even that monogamous conju- gal relations are the only proper way to produce chil- dren, are questionable. In considering whether to maintain the criminal prohibition on polygamy, criminal policy-makers should look to research emerging in the family law context, including the CRILF report, about how peo- ple now organize the intimate details of their private lives. Caseloads from the family court also belie stated assumptions about monogamy from the Reference that dyadic marriages are necessarily, or even gener- ally, harmonious and egalitarian. As scholars Gillian Calder and Lori Beaman have argued, assumptions about monogamous marriage underlying the reason- ing of the Reference seem unduly idealistic. Rather than being inspired by Hollywood-style romantic visions of monogamy when we contemplate the con- tinued criminalization of polygamy, criminal policy- makers would be wiser to look to the messy realities of monogamy, polyamory and families' lives, as revealed by the CRILF report, and in family courts. LT uDr. Rebecca Bromwich practises and teaches both family and criminal law. She is director of the graduate diploma in the conf lict resolution program in the department of law and legal studies at Carleton University. u SPEAKER'S CORNER COMMENT Family Law Marta Siemiarczuk

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