With the coming into force of the Family Law Act on March 18, 2013 the applicable law changed significantly in situations where parents seek to move their child or children to a new city, province or even country. Referred to as “mobility” or “relocation” cases, they are some of the most difficult cases faced by BC Family Law parties.
At highly rated MacLean Family Law, we are experienced in successfully representing BC Family Law litigants in these challenging relocation cases, as every one of them is. We have offices in Surrey, Kelowna, Fort St John and Vancouver and can be reached toll free at 1 877 602 9900.
In a recent decision reported at 2013 BCSC 1233, Master Keighley recently noted the difficulty the Courts face in these problematic cases, writing:
For good reason, the prospect of a relocation application invokes something akin to dread in some members of the court. Almost inevitably, someone’s heart is broken no matter what the outcome of the application. If the party seeking to relocate is denied permission, plans are shelved, opportunities are lost and the overall welfare of the family, beyond considerations strictly concerned with the best interests of the child, are compromised. If the application is allowed, the party left behind struggles to maintain a relationship with the child often at considerable distance and expense, frequently in circumstances of modest means.
Most recently, we were successful at trial in her application to relocate, along with her child, from the Vancouver area to Washington State, USA.
This appears to be one of the first cases of its kind under the new BC FLA where the Court found that the following three conditions were met, such that the relocation was presumed to be in the best interest of the child:
1) The proposed relocation is made in good faith;
2) Reasonable and workable arrangements have been proposed to preserve the relationship between the child and the child’s other guardians; and
3) The relocating guardian and another guardian do not have substantially equal parenting time with child.
Click here for the full decision.
We have prepared a helpful bc child custody mobility flow chart to set out the steps required and considerations for the BC Courts in relocation cases under the FLA:
Step 1: Is there a written agreement or order respecting parenting arrangements or contact applicable to the child? Additionally, is there a “relocation” as defined by s.65 contemplated by a Guardian that can be reasonably expected to have a significant impact on the child’s relationship with either another Guardian or other persons having a significant role in the child’s life?
If yes, Division 6 applies; continue to Step 2.
Step 2: Has the relocating Guardian given to all other Guardians and those having contact with the child, pursuant to s.66, written notice of at least 60 days’, setting out the date of the proposed relocation and the “name” [place] of the proposed relocation, or otherwise obtained an order for exemption from such notice requirements?
If yes, continue to Step 3, unless exemption granted by the Court pursuant to s.66(2)
Step 3: Have the relocating Guardian and those to whom notice was given made their best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation?
If yes and the matter resolved, no further action required and the relocation occurs. If yes and the matter not resolved, continue to Step 4.
Step 4: Has a Guardian of the child, within 30 days of receiving the written notice from Step 2, filed an application for an Order to prohibit the relocation?
If no, the relocation may occur on or after the date set out in the written notice. If yes, proceed to Step 5.
Step 5: The Court may make an Order either permitting or prohibiting the proposed relocation, with the test being whether the relocation is in the best interests of the child. Pursuant to s.69, the Court must consider the factors set out in s.37(2) as well as s.69(4)(a). Do the relocating Guardian and another Guardian have substantially equally parenting time with the child?
If no, proceed to Step 6 for the test respecting a crucial mandated presumption before Step 7. If yes, skip Step 6 and proceed directly to Step 7 for the test to be applied.
Step 6: Has the relocating Guardian satisfied the Court of each of the following two requirements:
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- The proposed relocation is in good faith;
- Reasons for the proposed relocation;
- Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, the relocating guardian;
i. Increasing emotional well-being;
ii. Increasing financial opportunities;
iii. Increasing educational opportunities;
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- Whether notice of the proposed relocation was given under s.66;
- Whether there are any restrictions on relocation contained in a written agreement or order.
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.
If yes, the relocation must be considered to be in the best interests of the child unless another Guardian satisfies the Court otherwise, in Step 7. If no, then proceed to Step 7, although without these factors satisfied the proposed relocation will likely not be in the child’s best interests as decided in Step 7.
Step 7: On a consideration of the factors in subsection 69(4)(a) as well as the factors in s. 37(2), and keeping in mind the presumption in favour of the relocation from Step 6 if applicable, is the proposed relocation in the best interests of the child?
If yes, the relocation occurs. If no, the relocation does not occur. Regardless of the answer, proceed to Step 8.
Step 8: If the Court makes an Order permitting the relocation, should the Court, pursuant to s. 70, make ancillary Orders to give effect to the move, or to ensure compliance with the Order permitting relocation?
If the Court makes an Order prohibiting the relocation, should it further make an Order pursuant to s.47 to change an order respecting parenting arrangements?
If the relocation is permitted, the Court may make ancillary orders pursuant to s.70. If the relocation is prohibited, s.71 “prevents an application to change parenting arrangements based only on the fact that a Court refused to allow a Guardian to move”, as set out in the Ministry of Justice annotation to section 71.
