An interesting BC family law and divorce article on BC Child Custody and BC child access and BC parental mobility was published in the Vancouver Sun today by Darah Hansen. The article points out that there is no automatic entitlement to move away with child after divorce -but rather the court will look at what is in the best interest of the child before permitting any move. What is readily apparent on move applications, is that, they are not commonly initiated because they are in the best interest of the children but rather usually they are initiated in the best interest of the parent with respect to advancing career, jobs or new relationships where one party lives or has a job opportunity outside of the current residence of the child.
We wrote an article on this topic that provides a detailed analysis of exactly what factors the court should use in deciding to allow a child to be moved from their current residence. We provide this critical statement of the mobility law below.
What Happens in a British Columbia Divorce When One Parent Wants to Move Away and Take the Children?
One of the most difficult issues parents and family lawyers face is the ability of a parent to move to another city, province or country either before a custody trial or after a custody trial has occurred. Generally speaking, it is harder to obtain court approval before a trial than it is after a trial because courts want to ensure that a hearing occurs on which parent is preferred before they will allow someone to uproot children.
The leading authority on the right of the custodial parent to move with the child is now Gordon v. Goertz, [1996] 2 S.C.R. 27. That case sets out a two-step process on an application for a change in the custody order to allow a move by the custodial parent:
The applicant must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the applicant must establish that the proposed move is in the best interests of the child, given all of the relevant circumstances for the child’s needs and the ability of the respective parents to satisfy them.
There is no legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect. Each case turns 77 on its unique circumstances.
The decision of One v. One, 2000 BCSC 1584 (at para.24) provides a concise summary of the current “mobility” law in BC as follows:
20 In dealing with these questions, the Supreme Court of Canada in Gordon v. Goertz(1996), 19 R.F.L. (4th) 177 (S.C.C.) set out the following summary of the matters which must be considered:
The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly, the judge should consider, inter alia:
the existing custody arrangement and relationship between the child and the custodial parent;
the existing access arrangement and the relationship between the child and the access parent;
the desirability of maximizing contact between the child and both parents;
the view of the child;
the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
disruption to the child of a change in custody;
disruption to the child consequent on removal from family, schools, and the community he or she has come to know. (at pp.201-202)
21 After setting out that summary of the law, McLachlin J. on behalf of the court then concluded:
In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? (at p.202)
22 In Gordon v. Goertz, the court concluded that it was appropriate for the mother to have continuing custody despite her intended move to Australia. The particular factors of importance were noted by McLachlin J.:
. . . The fact that the child has been in the custody of the mother for some years, that the reasons for initially granting the mother custody have not been shown to have substantially changed, and that a change of custody at this time would probably be highly disruptive to her, argue in favour of the mother retaining custody. On the other hand, the child’s access to her father, with whom she enjoyed a close relationship, has been greatly diminished as a consequence of her mother’s move, and the child has been removed from her extended family and community in Canada. . . . (at p.203)
23 In considering the factors set out in Gordon v. Goertz, the British Columbia Court of Appeal in Nunweiler v. Nunweiler(2000), 78 B.C.L.R. (3d) 1 (B.C. C.A.) provided these further guidelines in the context of its determination of the trial decision dealing with the initial determination of custody:
First, the decision directs the court to consider the motive for a parent’s relocation only in the context of assessing the parent’s ability to meet the needs of the child. This, in my view, is as relevant a direction on an initial custody hearing as on a variation hearing. Second, the decision confirms the significance of the instruction, found in s.16(10), to consider the willingness of a parent to facilitate contact, but notes that this consideration is subordinate to over-all consideration of the best interests of the child. Third, and more broadly, it approaches the issue of a relocation of residence from a perspective of respect for a parent’s decision to live and work where he or she chooses, barring an improper motive. (at para.28)
24 When reviewing requests for changes in custody and access and in reviewing the question of whether the children should be moved where such a move may make access more difficult, courts in British Columbia have looked at a multitude of issues in determining what is in the best interests of the children. A review of those decisions produces the following 12 factors which have been reviewed in deciding what is in the best interests of the children:
(A) PARENTING CAPABILITIES OF AND CHILDREN’S RELATIONSHIP WITH PARENTS AND NEW PARTNERS:
Morrison v. Morrison, 2000 BCSC 1017 (B.C. S.C. [In Chambers]); Henderson-Thomson v. Thomson, 2000 BCSC 1273 (B.C. S.C.); Creighton v. Creighton, (September 10, 1997), Doc. Vancouver D105961 (B.C. S.C.);
(B) EMPLOYMENT SECURITY AND PROSPECTS OF EACH SPOUSE AND, WHERE APPROPRIATE, THEIR PARTNER:
Kennedy v. Kennedy, (November 18, 1997), Doc. Vancouver D103472 (B.C. S.C.); Wilson v. Daffern, (December 10, 1998), Doc. Vancouver D108580 (B.C. S.C.); Vinderskov v. Vinderskov, 2000 BCSC 744 (B.C. S.C.); Gabriel v. Gabriel, 2000 BCSC 587 (B.C. S.C.); Lowther v. Ontiveros, (October 30, 1998), Doc. Victoria 5939/31846 (B.C. S.C.); Dhaliwal v. Dhaliwal, (January 15, 1998), Doc. New Westminster E003738 (B.C. S.C. [In Chambers]); Lloyd v. Earle, (November 14, 1996), Doc. New Westminster S13776 (B.C. Master); Campbell v. Campbell, (May 30, 1996), Doc. Salmon Arm 3589 (B.C. S.C.); Niewerth v. Niewerth, (May 12, 1997), Doc. Vancouver D070414 (B.C. S.C. [In Chambers]);
(C) ACCESS TO AND SUPPORT OF EXTENDED FAMILY:
Kennedy v. Kennedy, supra; Poirier v. Heron, (May 9, 1996), Doc. Vancouver F960131 (B.C. S.C.); Keil v. Wrightmeyer, 2000 YTSC 504 (Y.T. S.C.); Wilson v. Daffern, supra; Lichtenwald v. Lichtenwald, (August 31, 1999), Doc. Victoria 993276 (B.C. S.C.); Brekke v. Brekke, (January 13, 1999), Doc. Kamloops 012198 (B.C. Master); Henderson-Thomson v. Thomson, supra; Vinderskov v. Vinderskov, supra; Lowther v. Ontiveros, supra; Proctor v. Proctor, (August 20, 1998), Doc. Victoria 5939/28779 (B.C. S.C.); Western v. Young, (June 25, 1998), Doc. Victoria 5939-32001 (B.C. S.C.); Dhaliwal v. Dhaliwal, supra; Campbell v. Campbell, supra; Niewerth v. Neiwerth, supra;
(D) DIFFICULTY OF EXERCISING PROPOSED ACCESS AND QUALITY OF PROPOSED ACCESS IF MOVE IS ALLOWED:
Kennedy v. Kennedy, supra; Poirier v. Heron, supra; Keil v. Wrightmeyer, supra; Wilson v. Daffern, supra; Mammon v. Mammon, (October 21, 1999), Doc. Vancouver D109829 (B.C. S.C.); Brekke v. Brekke, supra; Vinderskov v. Vinderskov, supra; Doro v. Doro, (October 31, 1997), Doc. Vancouver D084753 (B.C. S.C.); Lloyd v. Earle, supra; Creighton v. Creighton, supra; Campbell v. Campbell, supra; Niewerth v. Niewerth, supra;
(E) EFFECT UPON CHILDREN’S ACADEMIC SITUATION:
Keil v. Wrightmeyer, supra; Morrison v. Morrison, supra; Lichtenwald v. Lichtenwald, supra; Brekke v. Brekke, supra; Vinderskov v. Vinderskov, supra; Gabriel v. Gabriel, supra; Proctor v. Proctor, supra; Niewerth v. Niewerth, supra;
(F) PSYCHOLOGICAL/EMOTIONAL WELL-BEING OF CHILDREN:
Gabriel v. Gabriel, supra; Robinson v. Beertema, (June 25, 1996), Doc. Smithers 8734 (B.C. S.C.); Niewerth v. Niewerth, supra; Kennedy v. Kennedy, supra; Henderson-Thomson v. Thomson, supra;
(G) DISRUPTION OF CHILDREN’S EXISTING SOCIAL AND COMMUNITY SUPPORT AND ROUTINES:
Keil v. Wrightmeyer, supra; Morrison v. Morrison, supra; Brekke v. Brekke, supra; Vinderskov v. Vinderskov, supra; Lowther v. Ontiveros, supra; Proctor v. Proctor, supra; Doro v. Doro, supra; Lloyd v. Earle, supra; Creighton v. Creighton, supra; Campbell v. Campbell, supra;
(H) DESIRABILITY OF PROPOSED NEW FAMILY UNIT FOR CHILDREN:
Henderson-Thomson v. Thomson, supra; Lloyd v. Earle, supra; Creighton v. Creighton, supra;
(I) RELATIVE PARENTING CAPABILITIES OF EITHER PARENT AND RESPECTIVE ABILITY TO DISCHARGE THEIR PARENTING RESPONSIBILITIES:
Vinderskov v. Vinderskov, supra; Doro v. Doro, supra; Dhaliwal v. Dhaliwal, supra; Creighton v. Creighton, supra;
(J) CHILD’S RELATIONSHIP WITH BOTH PARENTS:
Kennedy v. Kennedy, supra; Wilson v. Daffern, supra; Mammon v. Mammon, supra; Simpson v. Simpson, (December 23, 1997), Doc. Vancouver D099652 (B.C. S.C.); Morrison v. Morrison, supra; Lichtenwald v. Lichtenwald, supra; Brekke v. Brekke, supra; Henderson-Thomson v. Thomson, supra; Vinderskov v. Vinderskov, supra; Lowther v. Ontiveros, supra; Western v. Young, supra; Dhaliwal v. Dhaliwal, supra; Lloyd v. Earle, supra; Niewerth v. Niewerth, supra;
(K) SEPARATION OF SIBLINGS:
Wilson v. Daffern, supra;
(L) RETRAINING/EDUCATIONAL OPPORTUNITIES FOR MOVING PARENT:
Western v. Young, supra.
