Some of the most difficult custody cases are those where one parent moves away with the children, leaving the other parent with restricted access as a result. Where such a move is opposed by the other parent, these are termed “mobility” cases. The new BC FAMILY LAW ACT sets out important new tests and factors for BC courts to apply. Call us at 1-877-602-900 immediately if you have an issue in this regard.
The new BC Family Law Act which received Royal Assent on November 24, 2011 contains extensive provisions with respect to parenting arrangements including mobility. These provisions, which are not yet in effect, will require a parent who plans to relocate with a child to provide at least 60 days written notice to the other parent provided that the other is the child’s guardian or has “contact” with the child, the latter being akin to access under the current legislation.
- The relocation may then occur on or after the date set out in the notice unless the other parent, within 30 days after delivering the notice, files an application for an order to prohibit the relocation.
- If an application is made, the court can then make an order permitting or prohibiting the relocation.
- The relocating parent must satisfy the court that the proposed relocation is made in good faith – and in this respect the court will look at whether notice was given, whether there are any restrictions on relocation in a written agreement or order, and whether the proposed relocation is likely to enhance the general quality of life of the child and if applicable of the relocating parent – and that he or she has proposed reasonable and workable arrangements to preserve the relationship between the child and the other parent.
- If the court is satisfied that this is the case, provided that the parents do not have substantially equal parenting time, the relocation is then considered to be in the best interest of the child unless the other parent satisfies the court otherwise.
- If the parents do have substantially equal parenting time, the relocating parent must also satisfy the court that the relocation is in the best interests of the child.
A parent applying for a variation of a custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. A proposed move which would affect an existing access order may be sufficient to meet the ‘”material change” threshold.
If the threshold is met, the applicant must establish that the proposed move is in the best interests of the child, given all 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. The leading case in Canada on “mobility” is Gordon v. Goertz, [1996] 2 S.C.R. 27, which hold that the Judge hearing the application should consider the following relevant factors:
i. the existing custody arrangement and relationship between the child and the custodial parent;
ii. the existing access arrangement and the relationship between the child and the access parent;
iii. the desirability of maximizing contact between the child and both parents;
iv. the views of the child;
v. 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;
vi. disruption to the child of a change in custody;
vii. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
Where a custodial parent has sought to move to be closer to family and obtain help to parent the child, to take a job, or to remarry and live with their new spouse, it has been found in some cases that to deny the move would cause the parent stress or unhappiness which could adversely affect the children. However, other cases have focused on the adverse effect such a move would have on the child’s time with the other parent, so that the value of regular contact between parent and child should take precedence. Each case turns on its own unique circumstances.
The weight to be given to the views of the child would depend on factors such as their age, the reason why the child want to live with a parent, and the firmness of their views.
It is currently expected that it will be at least 12 – 18 months before these provisions and the balance of the BC Family Law Act come into effect. In the interim, “mobility” cases under the current BC Family Relations Act and those under the Divorce Act (Canada) will continue to be subject to the factors set out in Gordon v. Goertz.
The lawyers are MacLean Family Law Group are experienced in custody and access matters, including mobility applications.
