On February 15th, 2023 NAWL will intervene in a family case before the Court of Appeal for Saskatchewan.
The case, Friesen v Friesen, concerns the recent Divorce Act amendments and their impact on women. We believe that this case has the potential to set a precedent for future divorce cases and shape the way that the Divorce Act is applied to women, including in situations of family violence.
What is the case about?
Friesen v Friesen concerns a mother’s appeal from a trial judgement denying her request to relocate with her daughter from Saskatoon to Cochrane. Shared parenting was granted, rather than relocation with the mother. This case will be one of the first appellate decisions to interpret the Divorce Act’s new relocation provisions. We believe it also presents an opportunity for the Court to discuss stereotypes about victims of intimate partner violence.
Why does relocation matter?
Did you know that over 90% of parents who intend to relocate with their child are mothers? This is often because, during marriage, women are more likely to be the “trailing spouse”, meaning that they follow their husband to his place of residence or employment. Once the couple separates, the mother risks being stuck in a place where she has no network and limited employment opportunities, especially if she has been purposefully isolated by her violent partner.
Mothers often wish to move back home or move away to find a better job, but they want to bring their child with them. Judges sometimes tell mothers not to relocate so that the child can have access to both parents in the same city, but this is inappropriate because adults have the right to live where they want.
Enabling mothers to relocate with their children is essential to ensure children’s best interests, especially in cases of family violence. In such cases, the father’s attempt to obtain custody or parenting time is often part of a continued attempt to control the mother and the child.
What are we arguing?
In 2019, Parliament adopted Bill C-78 which amended the Divorce Act. We argue that the amended law has an equality-affirming purpose and that it must be interpreted in a manner consistent with the Charter value of gender equality.
Our factum posits that the Divorce Act framework for relocation cases prevents the court from considering a parenting arrangement in which the intended relocation does not take place. Rather, the court must take the parent’s move as a given, and decide what parenting time each party should have in light of this new situation. This means that shared parenting in the same city cannot be considered. Moreover, the law provides for a presumption in favour of the primary caregiver: when a mother who has done most of the care work in relation to the child intends to move, it should be presumed that the child will relocate with her. This is essential to realize Parliament’s intent as well as to recognize mothers’ important parenting work.
We also warn the Court of double standards and stereotyping mothers as “vindictive”’ “intransigent” or “alienating”. Because judges often favour shared parenting, mothers who are or ask to be primary caregivers are sometimes seen as suspicious. They are also expected to take responsibility for the quality of the father-child bond post-separation. This is particularly problematic in family violence cases, where mothers are expected to put themselves at risk of continued violence for the sake of fostering the father-child relationship.
We argue that cases that frame mothers as hostile often engage in victim blaming, that is, blaming the mother for the father’s violence or its consequences. If a father has a poor relationship with his child because he has been violent towards them or the mother, that is his responsibility and not the mother’s.
Read our full factum here. NAWL Factum Friesen v Friesen