As highly rated child mobility and move away custody and guardianship and access lawyers, we frequently deal with relocation cases involving custody of children where parents want to take a better job or have a better lifestyle with greater family support. Kelowna, Vancouver, Surrey and Fort St John child custody “move away” cases, also called “child mobility cases” and also known BC “child custody relocation” cases, often lead to separation of the child, in these change in child custody guardianship situations, from either the moving away or staying put parent. Contact us now for help in this complex and difficult area of law.
The British Columbia Supreme Court, in Robles v. Kuhn, 2012 BCSC 752 granted sole custody to Ms. Robles and joint guardianship to both parties. Additionally, the court allowed Ms. Robles to re-locate to Mexico with both children even though the family lived in Canada, both children were born in Canada, and the children have never lived in Mexico. As a result, Mr. Kuhn’s access to his children will be greatly limited.
Ms. Robles and Mr. Kuhn met online on a dating website in 2001. In November 2001, Mr. Kuhn travelled to Mexico to meet Ms. Robles and proposed on the third day of the visit. In February 2002, Ms. Robles moved to Canada and the couple purchased a home. The couple married on April 5, 2002. The couple had two children born in Canada in 2005 and 2006. At the time of trial, Ms. Robles was 43 and came from an upper middle class home in Mexico, and she had had a successful career in Mexico before moving to Canada. The court found that when the couple met Ms. Robles was “32 years old, very financially comfortable, and was a very career-oriented person. She owned a late-model Honda Accord and had savings equivalent to about $25,000. She was planning to buy a house.” When the couple met, Mr. Kuhn was a career military officer. Just prior to meeting Ms. Robles, he had served in the Balkans in wartime conditions. While the couple was together, Mr. Kuhn continued his career with the reserves and was promoted to the rank of Lieutenant-Colonel. Between his private sector employment and his activities with the reserves he held two full-time jobs. For various reasons the marriage disintegrated, and Mr. Kuhn moved out in 2008. Although Ms. Robles held high-paying employment positions in Mexico, she was unable to obtain comparable positions in Canada because of her lack of local qualifications and because her proficiency in English was not adequate. In contrast to her career opportunities in Canada, in 2009 Ms. Robles was offered employment in Mexico from an international soft drink company with a salary of $100,000 plus bonuses, pension and other benefits. Ms. Robles sought an order allowing her to move with the children to Mexico to pursue her employment opportunities. Mr. Kuhn opposed the move, taking the position that the wife was capable of securing equally high-level employment in British Columbia, and that the move would deny him effective and regular interaction with the children.
The court mentioned the “maximum contact” principle set out in the Divorce Act as a mandatory factor for consideration, but stated that “it is not absolute and is to be adhered to only insofar as it is consistent with the children’s best interests.”
The court followed the recent Court of Appeal case, of R.E.Q. v. G.J.K. with reference to mobility rights. Maclean Law has done several blogs on this case. In R.E.Q. v. G.J.K, the Court of Appeal emphasized that courts should stay focused on the main over-arching principle of the ‘best interest of the children’ in mobility cases. The Court reinforced that there no de facto presumption in favour of the custodial parents’ wishes, and that the children’s best interest should be the over-arching focus. At the time of trial, the children were six and seven years old. The court referencing R.E.Q. v. G.J.K emphasized the best interest of the children in relocating to Mexico over the rights of the father to see the children. The court concluded that in Mexico Ms. Robles would be able to pursue a well-paying career that will enable her children to have “a more comfortable life with greater financial stability.” Conversely, the court felt that if Ms. Robles stayed in Vancouver that there life would be “hardscrabble” and heavily dependent on Mr. Kuhn. The dependence on Mr. Kuhn would likely come with conflict and uncertainty over support payments. The court found that in Mexico Ms. Robles would have the support of her family, which will enable her to pursue “the career that will provide the financial security and improved standard of living for her and the children, and the children will benefit from increased contact with both the immediate and extended family.”
The court found the above considerations outweighed the detriment associated with decreased involvement and interaction with the children and Mr. Kuhn. The court awarded Ms. Robles the right to move the children to another country even though the children were Canadian and had been raised so far in this culture.
The New Family Law Act which comes into force in 2013 sets out new rules for the court to follow including issues around relocation of children. The legislation introduces a regime to increase certainty and predictability when it comes to child relocation. Under the new Act, there is a mandatory 60 day notice to move provision that enables parties an opportunity to resolve any disputes arising from the move. Also, the legislation outlines factors that must be considered when looking at the proposed move and factors that must not be considered. Additionally, the new Act sets our legal tests and presumptions in favour or opposed to relocation. The Act reiterates R.E.Q. v. G.J.K. in stating that the children’s best interest is the only consideration in parenting disputes.
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 in British Columbia family law, 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 toll free at 1 877 602 9900.
