In mobility cases, the Judge often has to make very hard calls in terms of what is in the best interests of the children. The trouble with mobility cases is there is really no middle ground on which to broker a settlement and often the denial or allowance of relocation can leave one party at a distinct disadvantage, whether that is regarding their personal circumstances or their ability to access their children.
One of the issues which have come from these cases is the "Double- Bind Conundrum". This arises from the impossible spot the party applying to relocate is placed in when expressing their position to the Court. The relocating party can either state the position that they will leave regardless of the Court's decision on whether the children can relocate or the position that they will stay if the application is denied. Each position can put the applying party into difficulty in front of the court.
The position that the relocating party will relocate without the children strengthens the importance of the move and leaves the Court without the option of status quo. However, the party runs the risk of the Court interpreting that position as practically abandoning the children and putting oneself in front of the children. On the other side, telling the court that the relocating party will stay if they lose undermines the importance of the move, and gives the Court the option of staying with the status quo. It has the positive effect however of showing the Court that party is willing to sacrifice for the children. The parties are left then to wonder which would be more fruitful for their application, an assertion of sacrifice parenting or the importance of the relocation.
This was first articulated in the Court of Appeal case, Spencer v Spencer, 2005 ABCA 262. In that case the Court stated at para 18:
In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move without the children should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classic double bind. If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of being regarded as self interested and discounting the children's best interests in favour of his or her own. On the other hand, advising the court that the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggesting that such a move is not critical to the parent's well-being or to that of the children. If a 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.
The Court goes on that the real inquiry is between the two choices and what is in the best interests:
Once a material change has been found, Gordon [the leading SCC case on relocation, directs the judge to be mindful of the status quo prior to the move, but the inquiry cannot stop there. The relevant inquiry is to the children's best interests, evaluated in the new circumstances as found (in Spencer, the effect on the children of the mother's relocation with her new husband and child to Victoria if they are allowed to move) compared to its affect on them if they are not allowed to move. The children's best interests must be assessed in the new circumstances, its impact on them if they stay or if they go. (at para 19, parentheses added)
Therefore under this analysis no emphasis in the decision should be given to the fact that the applying parent will stay if denied or what it means if they would leave without the children.
This analysis changes when the party has already relocated. The expression of not moving back with the children now strengthens rather than undermines the position of the party who relocated. The question then becomes what should be taken from their expression that the relocated party would not move back if the children were compelled.
This was looked at by the Court of Appeal the year after Spencer, in MacPhail v Karasek, 2006 ABCA 238. The trial Judge found that the statements that she would not move back regardless of the decision was an egregious manipulation on the mother's part. One can see the impact of such a statement. If the mover is not willing to move back and they are the primary parent, that statement has the potential to rule the day. However, the Court of Appeal decided that this statement was not only appropriate but needed. If the moving party had not stated that, even if it was their position, they have once again undermined their position by worrying about what the Court would think. The Court stated at para 51:
There is another issue. The trial judge found that the Mother's stated position at trial that she would not move back to Medicine Hat was an "egregious example of manipulation" by the Mother. But the Mother was caught in a quandary at this point. If she did not take this position, the court might avoid making the difficult decision it is compelled to make in mobility cases. She was in the "classic double bind" as that conundrum was described by this court in Spencer v. Spencer,  A.J. No. 934, 2005 ABCA 262 (CanLII), at para. 18: [see above]
The court went on to further state: "[T]hus, ill will should not have been imputed to the Mother for these statements and for her unwillingness to return to Medicine Hat."
It should be noted, that MacPhail was in a situation where the mother had moved, and then over a year later the father applied to have the children brought back. Ill will not being imputed for the mother not wanting to move back does not preclude other findings of wrong-doing by the person who relocated.
The case Sangha v Sandhar, 2013 ABCA 259 confirms the test set out in Spencer and MacPhail for mobility as still the law.
These cases present an inherent issue the Court is faced with in a mobility case. As there is no middle ground, there is a desire by the Court and the parties to try to see solutions that may not exist. The Court's only determination is in the best interests of the children. The Court must have the full position of the parties and make this determination on the circumstances. However, the Court must be cautious of the inquiries they would like to make into whether parties would stay or move back and what those decisions say about their parenting. They must be cautious lest they rest their decisions on information and assumptions gathered when a party is caught in the web of the Double-Bind.