As highly rated child mobility and “move away” Vancouver child 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
Recently, the British Columbia Court of Appeal published a case that further explained the principles that should be followed in child relocation cases.
In Hejzlar v. Mitchell-Hejzlar (2011 BCCA 230), the court overturned a lower court decision that blocked the move of a child with the custodial parent. The court reiterated the standard that the appellate court will show is one of deference to the lower courts even in child custody cases. This standard limits the scope for appellate intervention to cases where there is “a material error, a serious misapprehension of the evidence, or an error in law.” Even with the court making clear of the high standard, the court overturned the learned judge and substituted its own order.
The appeal concerned the relocation of a child’s primary residence from the Lower Mainland to Edmonton. The parties married in 1998 and separated in 2004. In 2001, they had a son who at the time of trial was 9. The mother and the child began living with the mother’s new partner in 2005 in Vancouver. The appellant, the child’s mother, sought unsuccessfully to relocate to Edmonton with the child and her two younger children, thereby to reside with her husband, who had accepted employment in Edmonton after being laid off in British Columbia. In refusing her application, the lower court ordered a change in primary residence to the respondent, the child’s father, if the appellant moves to Edmonton.
The appellant contended the learned judge erred in failing to approach the possibility of the child’s move to Edmonton in the manner required by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27.
The parties entered into a separation agreement in December 2005. The agreement was comprehensive, settling property, support obligations, child custody, guardianship and access. The agreement established a regime of joint custody and joint guardianship, with the child’s primary residence with the appellant. It detailed access for the respondent: alternating weekends, Father’s Day, the two days before Christmas, one week in July and August. The agreement provided: “Neither party will move out of the Lower Mainland without the consent of the other party or court order.”
The Appeal court acknowledged the difficulty of relocation cases when it is against the wishes of the non-moving parents stating that, “In the tangle of competing benefits and detriments to the child it is not easy to determine best interests.”
After referencing the relevant case law, the Court of Appeal enunciated four principles that should be followed in child relocation cases. Firstly, the case law illustrated that the principle of maximizing contact between child and parent must be followed; however, the court pointed out that this is not an absolute principle, and is only to be followed within the limits of what is “consistent with the best interests of the child.” Secondly, following the Supreme Court, in Gordon v. Goertz, courts should have an attitude of respect to the custodial parent’s wishes, unless there is an improper motive for the proposed move. Thirdly, the courts should not favour the status quo as a ‘default position’. Lastly, the courts should discourage reliance on any expression by the parent who is seeking to move, that he or she will not move if the child cannot accompany him or her.
In the present case, the Court addressed the provision in the separation agreement that neither party will move without consent or a court order stating:
In my view the provision that the primary residence of the child shall be in the Lower Mainland does not limit a judge when considering a possible move. The separation agreement expressly contemplated court involvement when the parties do not agree, thus tacitly accepting that the child may move from the Lower Mainland after a scrupulous review of the interests of the child by a court.
In examining the present case, the Court took issue with the judge’s treatment of the appellant’s testimony that she would not move without the child. As stated above, the Appellant court made clear that this is one of the principles that lower courts should avoid stating that, “this evidence is an example of the “double bind” in which a primary caregiver is put by consideration of that choice.” Secondly, the Court found that the judge put too much weight into the status quo as an acceptable default position contrary to another stated principle stating:
The subtle, and troublesome, consequence of approaching the question with preference for the status quo is that the fully rounded analysis does not occur. In my respectful view, this is what happened here. The narrow ambit of the factors considered by the judge in assessing the alternative, in my view, reflects a material error in principle.
As a result of these two principles and others discussed in the judgment, the court found that the lower court’s order blocking the move “does not incorporate the respectful and balanced stance required by Gordon v. Goertz and the other cases to which I have referred, and slips into the status quo as the default position.” The court set aside the order and substituted an order allowing the move.
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.
