Connection to parent important, but not only factor in child's best interests: N.S. Court of Appeal

The Nova Scotia Court of Appeal has rejected a trial judge’s application of the best interests test for overemphasizing a child’s connection to a particular parent, a complete reliance on a the mother’s ability to create an appropriate plan after relocation, and the effects of the relocation on the child.

In Titus v. Kynock, 2022 NSCA 35, Luke Titus and Carley Kynock obtained an interim shared parenting order over their child in 2016. A second interim order later placed the child in Kynock’s primary care in Nova Scotia.

In 2021, Kynock asked the judge to award her primary care because she intended to relocate to Idaho with her new husband, arguing that it was in the child’s best interests to reside with her. Titus objected, arguing that relocating is contrary to the child’s best interests. The judge granted Kynock “primary care with sole decision-making authority on all issues and the ability to travel with the child without [Titus’] consent.”

Titus appealed, alleging that the judge misapplied the best interests of the child test.

The appeal court agreed.

“By their nature, custody decisions are highly discretionary and entitled to deference,” said the court. However, in this case, the judge’s reasons illustrated that she did not properly consider the best interests test, said the court.

The appeal court found that the judge was incorrect in equating the best interest test with the child’s sense of connection. While it was an important factor to consider, the judge appeared to have excluded all other factors in her analysis, said the court. This was also reflected later in her decision where the judge emphasized that “wherever mom is in the world, that’s [his/her] home,” which showed a lack of objectivity in assessing each parent’s plan, said the court.

Further, when read as a whole, the judge’s decision on relocation focused exclusively on its implication on Kynock and not the child, the court found. The judge also failed to meaningfully consider the impact relocation would have on the child’s relationships with her grandparents, all of which were located in Nova Scotia, said the court.

Lastly, addressing the absence of particulars in her relocation plan, the judge erroneously placed significant reliance and “blind faith” on Kynock’s ability to develop an appropriate plan concerning medical care, counselling, and travel arrangements upon her relocation to Idaho.

“The judge focused heavily on why the relocation would best suit Kynock” and not the child, said the court. She did not properly apply the best interests test and failed to properly balance the plans put forth by each parent, the court determined.

The Court of Appeal ordered a new hearing of the parenting and relocation issues.