What’s the test when someone wants to move away with their children before trial but the other parent opposes the move as being contrary to what’s best for them?
A recent decision by Master Scarth dealt with the principles to be applied to an interim move where the parents made disputed claims of domestic violence and drug use and both disagreed over whether Squamish or Kelowna had better economic and other opportunities for the parents and their children.
The top rated interim child mobility dispute lawyers at MacLean Law’s Vancouver, Surrey, Kelowna and Fort St John family law offices know that anyone trying to move before trial, where the competing parenting plans can be properly assessed and the parents seen heard and cross-examined, faces a tough task to succeed in moving away.
In N.A.F. v. C.D.M., the interim move was denied after the Court explained that the preferred approach is to apply the Divorce Act if the spouses are married over the family law Act while noting similar factors are considered under both sets of legislation.
[24] C.M. seeks an order for joint custody of the children. There is extensive evidence in the affidavits of the significant roles that both parties have played in the children’s lives to date. Further, while clearly the parties’ marriage was not a happy one, the evidence supports a finding that they have generally been able to communicate civilly in relation to the arrangements for the children.
[25] Given that the Court is addressing an application for custody, the preferable basis for consideration of the issue regarding the children’s residence is s. 16 of the Divorce Act: Hejzlar, at paras. 18-21; and Hansen v. Mantei-Hansen, 2013 BCSC 876, at para. 90; T.K. v. R.J.H.A., 2013 BCSC 2112, at para. 38.
[26] The issue here is whether the move by N.F. to Kelowna should be sanctioned on an interim basis as being in the children’s best interests. The approach to be taken on initial applications addressing a change in residence, where there are no pre-existing custody orders, is summarized in Nunweiler v. Nunweiler, 2000 BCCA 300, citing Gordon v. Goertz, [1996] 2 S.C.R. 27; see also Falvai v. Falvai, 2008 BCCA 503, at para. 27.
[27] The following principles are set out in these decisions:
a) Where competing custody claims and mobility issues are involved, the Court is to take a “blended approach”, i.e., to balance all relevant factors including a parent’s (proposed) move with the children to a new community: Falvai at para. 25, citing Nunweiler.
b) The factors to be taken into account include the desirability of maximizing contact; the views of the child; the custodial parent’s reason for moving only in exceptional cases where it is relevant to a parent’s ability to meet the needs of the child; the disruption to the child of a change in custody; and the disruption to the child consequent on removal from family, schools and the community he or she has come to know: Falvai, para. 27.
c) The focus of the inquiry is the impact of the (proposed) move on the child’s best interests: Falvai at para. 29.
[28] I have concluded that the Divorce Act is applicable here, but it is worth noting that, as the Court stated in Hansen at para. 95, the list of factors to be taken into account when assessing best interests in s. 37 of the Family Law Act is a composite of considerations addressed by the Courts and case law under the Divorce Act and the former provincial legislation, the Family Relations Act, R.S.B.C. 1996, c. 128. Under the Family Law Act, as under the Divorce Act, the best interests of the children are the only consideration: Hansen at para. 93.
[29] Applying these principles to the application before me, it is my view that an order for interim joint custody of the children is appropriate, and that the children should be returned to Squamish pending a final determination on the issue of custody.
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