Relocating with Your Child and BC Child Relocation Lawyer
Life circumstances change after separation and people change jobs and move to be near new partners, to advance their careers and to be near their sources of support. People are free to move in Canada it is their right. But you will often need a top BC Child Relocation Lawyer if you wish to move with your child if you are separated. Marriage doesn’t always last forever. In fact, in 2010, it was estimated that 4 out of 10 first marriages end in divorce. But, having a child does last forever. So, even if your relationship with your former partner doesn’t last, you’ll forever be that child’s parent.
After a divorce, life circumstances can change. Maybe you’ll get a new job or a new partner and these opportunities and relationships can be far away. Whatever the change may be, you may want to move towns (or relocate). And, if you do, you’ll likely want to take your child with you, right? However, often your ex spouse loves your child just as much as you do and a move will drastically alter the time the child spends with the left behind parent. They may likely oppose any move away of their child. If that happens and you can’t negotiate an arrangement that works for both of you, you’ll likely need to go court. That’s when it pays to have a highly experienced BC Child Relocation Lawyer.
The are clearly different tests for relocation for married and unmarried persons and the area is a legal minefield that requires careful guidance to ensure the right strategy is brought in a BC Child Mobility case by a top BC child relocation lawyer.
Recent Court of Appeal decision on relocation
In T.K. v. R.J.H.A., 2015 BCCA 8 the B.C. Court of Appeal recently set out the test for relocation when parents (who were formerly married) have substantially equal parenting time. Remember to ask a MacLean Law BC child relocation lawyer to explain why there are different tests for moving away depending on whether you have close to equal parenting time or less time.
Here are the facts of that case:
- The mother and father had lived together in a marriage for approximately 10 years.
- The parties had two children together, age 8 and 10.
- The parties separated because the mother wanted to move from Victoria to the Toronto area (where she grew up and where her extended family was located) and the father refused to move.
- The son (the eldest child) has ongoing physical and intellectual issues.
- From the time of separation to the date of the trial (22 months), the parties had a shared parenting arrangement in Victoria.
- At trial, the mother volunteered in her examination that she would probably not move to Toronto if her relocation application was not successful.
Following an 11 day trial, the trial judge found that it was in the children’s best interests to continue residing in Victoria. The trial judge also awarded costs to the father and imputed an income to the mother (for the purpose of child support), as the mother was found to be purposefully underemployed.
The mother appealed the trial judge’s orders.
Issues at appeal On the Disputed Child Mobility Issue
The central issue at appeal is the application of the test in Gordon v. Goertz, 1996 CanLII 191 (SCC). More particularly, the appeal engaged the interesting issue about when the relocating parent’s reason for wanting to move may be relevant considerations in determining the best interests of the children. This issue is referred to as the “double-bind” issue.
Put simply, the “double-bind” issue occurs when a parent is asked whether they would move without the children if the application is refused. If the parent says that they would move, it’s argued that it could negatively affect the court’s opinion (of that parent). Conversely, if the parent says that they would stay (if the application is refused), then that could more likely result in a status quo order.
Decision at appeal
The mother’s appeal was dismissed.
Regarding child support, the trial judge did not err in imputing income to the mother; the son’s special needs do not require the mother to only work part-time.
Regarding costs, they are a discretionary award and the trial judge made no error as the father was the substantially successful party in the action.
Regarding the relocation application, the trial judge weighed all the relevant factors as set out in Gordon v. Goertz (a two stage inquiry) and assessed the best interests of the children.
The test of Gordon v. Goertz is as follows:
- The first stage of the test requires the parent seeking to vary an order to demonstrate a material change in circumstances.
- In an initial application, this test is redundant (so the court moves to the next stage).
- The second stage of the test requires the court to engage in a fresh inquiry into what would be in the best interests of the child.
On appeal, the Court found that the trial judge did not rely on the mother’s reasons for wanting to relocate or, conversely, the father’s reasons for preferring not to relocate (in favour of ordering the status quo). Instead, the trial judge weighed all the evidence.
If the reasons for one parent to move would affect the child’s best interests, then such reasons are relevant in determining whether the child’s needs will be met. Regarding the “double bind” issue, it was relevant for the Court to know whether a parent would move or stay if the application is granted is relevant; however, that evidence must be weighed carefully with all the other evidence.
Family Law Act Did Not Apply
Interestingly, for additional context, section 46(2)(b) of the Family Law Act states that a court must not consider whether the guardian who is planning to move would do so without the child. So, the FLA specifically addresses the “double bind” issue and so the tests used by the court are different depending on whether or not the couple is married or common-law.
To confirm, then, when a couple is married (and not common-law), the Divorce Act and the test of Gordon v. Goertz prevail (and not the provincial Family Law Act).
Important paragraphs from the judgment
[23] The nature of these assumptions has been characterized as the “double-bind”, particularly for the parent seeking to relocate with the children. If the relocating parent indicates that he or she would move regardless of the outcome of his or her relocation application, the assessment of that parent might be that he or she is not prepared to put the children’s needs first and, therefore, act in their best interests. On the other hand, if the relocating parent indicates that he or she would remain with the children in their present community if his or her relocation application is refused, that concession could lead to a disposition that simply defaults to the status quo.
[24] In particular, the mother argued before the judge that the report failed to consider the four possible scenarios set out in S.S.L. v. J.W.W., 2010 BCCA 55 (CanLII). Those scenarios, in this case, are: (i) the mother relocating to Toronto with the children but without the father; (ii) the mother and the father remaining in Victoria with the children; (iii) the mother and the father relocating to Toronto with the children; and (iv) the mother relocating to Toronto without the children.
[32] Applying the test from Gordon v. Goertz, the judge grouped the relevant considerations into nine categories, the first eight of which included the listed factors at para. 49(7) of Gordon v. Goertz: (i) existing arrangements and relationship between children and parents; (ii) desirability of maximizing contact with both parents; (iii) views of the children; (iv) disruption to the children due to a change in custody; (v) disruption to the children due to removal from family, schools and community; (vi) Chinese culture and language; (vii) proximity to extended family; (viii) careers and financial concerns; and (ix) other factors.
[44] Under the Divorce Act, the leading authority on the issue of a parent’s mobility is Gordon v. Goertz. In that case, the mother who had “permanent custody” of the child, with the father having “generous access”, applied to relocate with the child to Australia. As such a change would materially affect the father’s access rights, the mother applied to vary the father’s access to the child. That application triggered the father’s cross-application for custody of the child.
[45] The Court granted the mother’s application and varied the father’s access. In the course of its reasons, the Court set out a two-stage test for the variation of a custody/access order under the Divorce Act. At the first stage, the parent applying to vary the existing order must demonstrate a material change in the circumstances affecting the child (para. 49(1)). If this threshold requirement is met, the court must then engage in 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” (para. 49(2)). The fresh inquiry “is based on the findings of the judge who made the previous order and evidence of the new circumstances” (para. 49(3)). There is no legal presumption in favour of the custodial parent, although that parent’s views are entitled “to great respect” (para. 49(4)). Each case turns on its own unique circumstances, with the best interests of the child as the only issue in the particular circumstances of the case (para. 49(5)), not the interests and rights of the parents (para. 49(6)).
[52] However, in the context of an initial custody and relocation application there has been no previous determination that one or the other parent is best able to meet the needs of the children. Accordingly, the modification of the test in Gordon v. Goertz, in my view, needs to include a modification of para. 49(7)(e). In an initial application, it seems to me that the reasons for a parent’s proposed move are relevant to the issue of whether the proposed move will meet the needs of the children or affect (positively or negatively) on that parent’s ability to meet the children’s needs. As the children’s best interests is the “only issue” in the blended analysis, all relevant circumstances that relate to the children’s needs and each parent’s ability to satisfy those needs must be considered.
[54] In summary, there may be many legitimate and worthy personal reasons for a parent wanting to relocate or a parent wanting to remain in the children’s existing community, that are entitled to be respected. However, those reasons may also be relevant to the question of whether the proposed move meets the children’s needs and/or the parent’s ability to provide for those needs and therefore may be a necessary consideration with the other relevant evidence to determining the custodial arrangement that is in the best interests of the children.
[57] This reasoning, in my respectful view, is consistent with Gordon v. Goertz and the jurisprudence on the modification that must be made in the application of Gordon v. Goertz to initial applications for custody and residency. An inquiry into the custodial arrangement that is in the best interests of the children must consider “all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them” (para. 49(2)). While the reasons for a parent’s proposed move, absent an improper motive, must be treated with respect, they will likely be relevant to determining what custodial arrangement is in the best interests of the children.
[67] The above approach is not, in my view, inconsistent with the principle in Gordon v. Goertz which instructs us that “[t]he child’s best interest must be found within the practical context of the reality of the parents’ lives and circumstances, one aspect of which may involve relocation” (para. 46). Prowse J.A. recognized this practical reality in Stav when she observed that in order to safeguard the best interests of each child, the parents may have to answer the question of whether they would move or stay based on the potential dispositions of the relocation application (para. 64).
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