BC child “move away” cases, also called Vancouver “child mobility cases” and also known as Kelowna BC child relocation cases, often lead to a no win situation for the child in these change in child custody guardianship situations says highly rated family lawyer Lorne MacLean, Q.C.. This is first of our two part series update on the current and anticipated state of the law in BC.
The new laws on child custody relocation are complex and you owe it to yourself to contact us and plan ahead so you understand your rights. Contact us now for help in this complex and emotional area of law.
Only guardians may oppose a move under the new Act and that means if you are currently only an access parent- whose “access” will be reclassified as being called “contact” under the new Act- you cannot oppose a move under the proposed Bill 16! You should discuss with us immediately why having joint or sole guardianship is now critical to your ability to participate as fully as possible in your child’s life and the status it gives you to move or oppose a move away case involving your child.
Moving with a child to a new residence and a new city is something Canadian families frequently do for jobs and careers. When the whole family relocates as a unit it can be an exciting time and the start of a whole new world of opportunities.
After marriage breakdown, however, such a move by one parent away with the parties children often puts the child in a classic no-win situation because either way the child may end up spending far less time with one of their parents regardless of whether the child moves way with the moving parent or changes residences perhaps to remain in the city where they spent their time prior to separation. When one parent wants to move away with a child after marriage breakdown it is called a BC child “move away” case, or a BC “child mobility case” or a BC child relocation case.
The moves that are proposed by a primary residential or custodial parent often focus more on, advancing the parent’s career or education, or that of their new spousal partner, or perhaps on the parent’s return to an area where they have more support as a newly single parent. Rarely, is the move specifically to benefit the child. However, there is a concept that a move that helps improve the financial and emotional happiness of a parent will have a direct trickle down effect on improving the life of the child. BUT and it’s a big BUT- the question remains at what price to the child in lost connections with the other parent and their friends, activities and home environment. The issue is one of the most emotional ones we face as family lawyers for our clients, as this is a case where the child will often end up having their relationship with one of their parents curtailed.
The New Family Law Act has created a set of new rules we will need to follow under provincial legislation. I have bolded some of the critical portions of the new act for our readers.
Division 6 — Relocation
Definition and application
65 (1) In this Division, “relocation” means a change in the location of the residence of a child or child’s guardian that can reasonably be expected to have a significant impact on the child’s relationship with
(a) a guardian, or
(b) one or more other persons having a significant role in the child’s life.
(2) This Division applies if
(a) a child’s guardian plans to relocate himself or herself or the child, or both, and
(b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child.
Notice of relocation
66 (1) Subject to subsection (2), a child’s guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days’ written notice of
(a) the date of the relocation, and
(b) the name of the proposed location.
(2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied that
(a) notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or
(b) there is no ongoing relationship between the child and the other guardian or the person having contact with the child.
(3) An application for an exemption under subsection (2) may be made in the absence of any other party.
Resolving issues arising from relocation
67 (1) If notice is required under section 66 [notice of relocation], after the notice is given and before the date of the relocation, the child’s guardians and the persons having contact with the child must use their best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation.
(2) Nothing in subsection (1) prevents
(a) a guardian from making an application under section 69 [orders respecting relocation], or
(b) a person having contact with the child from making an application under section 59 [orders respecting contact] or 60 [changing, suspending or terminating orders respecting contact], as applicable, for the purpose of maintaining the relationship between the child and a person having contact with the child if relocation occurs.
Child may be relocated unless guardian objects
68 If a child’s guardian gives notice under section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation.
Orders respecting relocation
69 (1) In this section, “relocating guardian” means a guardian who plans to relocate a child.
(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.
(3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (a) of this section.
THERE IS A FUNDAMENTALLY DIFFERENT TEST DEPENDING ON WHETHER ONE PARENT IS PRIMARILY IN CHARGE OF CARING FOR THE CHILDREN AFTER MARRIAGE BREAKDOWN OR WHETHER THE PARENTS ARE SUBSTANTIALLY SHARING THE ROLE OF RAISING THEIR CHILD REN AFTER MARRIAGE BREAKDOWN.
TEST IF TWO PARENTS DON”T HAVE NEAR EQUAL TIME
(4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,
(a) the relocating guardian must satisfy the court that
(i) the proposed relocation is made in good faith, and
(ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child’s other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child’s life, and
(b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.
TEST IF PARENTS HAVE SUBSTANTIALLY EQUAL TIME
(5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court
(a) of the factors described in subsection (4) (a), and
(b) that the relocation is in the best interests of the child.
(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:
(a) the reasons for the proposed relocation;
(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
(c) whether notice was given under section 66 [notice of relocation];
(d) any restrictions on relocation contained in a written agreement or an order.
(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child’s relocation were not permitted.
Our lawyers are fully versed in the latest developments involving child move away cases and what the differing strategies are whether you want to move or have a child remain in the area where they spent much of their lives. With new changes coming you owe it to yourself to plan ahead and find out what your rights are. Call us at any of our 4 offices in BC.
