A well reasoned decision on Vancouver child relocation and child mobility law was reached by Madame Justice Fisher in this weeks child custody case of Hadjioannou v. Hadjioannou. The case points out that the “best interest of the child” test can trump other factors despite new child mobility and child relocation rules established by the BC Family Law Act. To succeed on a child custody move away case where the parties share custody substantially equally, the BC Family law Act says the relocating parent must satisfy the Court of 3 things being:
- the proposed relocation is made in good faith;
- she has proposed reasonable and workable arrangements to preserve the relationship between the children and their father and other persons who have a significant role in the children’s lives; and
- the relocation is in the best interests of the children.
Lorne MacLean, Q.C. heads our BC child mobility and relocation department and has handled dozens of these cases. The new rules are complex and differing tests apply depending on what act is being relied upon so getting help early is a must. Call highly rated family lawyer Lorne MacLean, Q.C. toll free across BC or in Alberta at 1 877 602 9900.
This case points out the legislative flaw in a relocating parent having to slavishly meet all three tests to move away with the child. Often all three tests may not be met and the answer is the child stays where they are.
However, Judge Fisher points out that the best interests of the child may trump a move in bad faith and/or a good faith move with no reasonable plan for preserving the relationship with the non-relocating parent. If the plan is in the best interests of the child or the plan can be modified to accommodate the child’s move then why should the child’s best interest be ignored?
This judgment serves as a wake up call to those parties and lawyers who felt all three requirements need to be met and also involves the court resorting to “parens patriae” if required to protect the child’s best interests.
[1] THE COURT: This is an application by the respondent father under s. 69(2) of the Family Law Act, SBC 2011, c 25 for an order prohibiting the claimant mother from relocating to Alberta with the couple’s three children. I will refer to the parties as the mother and the father.
[14] Where the relocating guardian and the other guardian have substantially equal parenting time with the children, as in this case, s. 69(5) requires the relocating guardian to satisfy the court of three things. The first two are set out in s. 69(4)(a) and the last is what I see as the overriding consideration of the best interests of the child. Here the mother must satisfy me that:
a) the proposed relocation is made in good faith;
b) she has proposed reasonable and workable arrangements to preserve the relationship between the children and their father and other persons who have a significant role in the children’s lives; and
c) the relocation is in the best interests of the children.
[15] These three requirements raise the question of whether the relocating parent’s failure to satisfy the court of at least one of them requires the court to prohibit the move. For example, does a failure to establish good faith preclude the court from considering the best interests of the child and permitting the relocation where the court considers the move to be in the child’s best interest, despite a lack of good faith? I think not.
[16] The primary consideration in family law decisions affecting children has long been the best interests of the child. It remains so under the Divorce Act and in accordance with the principles set out in Gordon v. Goertz. Now, under s. 37(1) of the Family Law Act, it is to be the only consideration. In relocation decisions, however, the court is directed to consider the factors under s. 69(4)(a) – good faith and the reasonable and workable arrangements – in addition to the child’s best interests. Section 69(3) provides:
Despite section 37(1), 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.
[17] I think it would be inconsistent to interpret s. 69 in a way that would preclude the court from assessing the child’s best interests. I view the factors in s. 69(4)(a) as setting out evidentiary requirements bearing on the ultimate issue of best interests. Clearly, if the relocating parent fails to satisfy the court that the proposed move is made in good faith, or that reasonable and workable arrangements have been made to preserve the child’s relationship with the other parent, the proposed relocation may not be in the child’s best interest. There may, however, be cases where the opposite conclusion may be reached and the court should not be foreclosed from assessing all factors as they pertain to the child’s best interest
[18] I caution that I make these comments without the benefit of argument, as neither counsel raised this issue, but it became apparent to me, when considering the evidence in this case and the submissions that were made, and given the urgency of this matter. there was no time to request further submissions from counsel. I also note that Betton J. expressed similar concerns in L.J.R. v. S.W.R., 2013 BCSC 1344, the only decision of this court to date of which I am aware, which addresses relocation under the Family Law Act. He made these comments in the context of an application under s. 69(4), at paras. 80 and 81:
[80] The proper and necessary interpretation of s. 69 is that where the applicant has failed to satisfy the court that the proposed relocation is made in good faith, the FLA dictates that the application should be dismissed. Such a result, however, would preclude an actual consideration of the best interest of the child as articulated in s. 37(2), and that is inherently flawed.
[81] A failure to establish good faith and/or the proposal of reasonable and workable arrangements to preserve relationships will suggest the proposed relocation is not in the child’s best interests. However, that will not always be determinative. It may be that in other cases, a relocating guardian will not act in good faith, but the proposed relocation is nevertheless in the best interests of the child.
[20] Whether my interpretation of the legislation would allow this to take place or whether it would be under the parens patriae jurisdiction, either way, the court must consider whether a proposed relocation is in the child’s best interest.
Good faith
[21] To determine if the proposed relocation is made in good faith, the court must, under s. 69(6), consider all relevant factors, including these:
(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.
[22] This good faith requirement may be compared to conduct that may be considered under s. 16(9) of the Divorce Act, which provides that a person’s conduct is not to be taken into account unless the conduct is relevant to the person’s ability to act as a parent. In Gordon v. Goertz, McLachlin J. (as she then was) noted (at para. 22) that this stipulation is important because “all too often” applications to vary based on relocation “have descended into inquiries into the custodial parent’s reason or motive for moving” and this shifts the focus away from the best interests of the child. She acknowledged, however, that a parent’s reasons for moving could reflect adversely on that parent’s ability to appreciate the best interests of the child.
[23] It seems to me that the good faith requirement under s. 69 does not change this principle, as all of the factors in s. 69(6) have a bearing on the relocating guardian’s ability to act as a parent and to consider the best interests of the child.
Call highly rated family lawyer Lorne MacLean, Q.C. toll free across BC or in Alberta at 1 877 602 9900.
