Have New Rules for BC Child Relocation And Substantially Equal Parenting Time Caused More Conflict?
Have BC’s new child relocation rules setting different standards for success -depending on time spent by both parents with a child- created more fighting over how much time each parent spends with their child post separation? Will more separating parents seek shared custody to hedge their bets on child move away plans? Will a parent with a “child move away” agenda reduce time by their child to the non primary residential parent to increase their chances of child relocation success? Are the new BC substantially equal parenting relocation rules helping or hurting children in BC?
Relocation Is Common In Today’s Modern World
Bc child relocation is an increasingly common event in children’s lives after their parents separate or divorce. Separated BC spouses enter new relationships, get job offers or wish to return to their roots where family and relatives live. Child relocation and move away disputes are often the most difficult of family disputes to resolve and these disputes often end up in court. The reason is because of the huge change the relocation causes to a child’s ability to spend maximum time with both parents. Our skilled MacLean Law lawyers handle these cases on a daily basis and we are pleased to provide a comprehensive strategy that promotes your child’s best interests.
New BC Rules For Moving Away With A Child Now Apply
Our Bc Family Law Act has established new rules for what test is applied when one parent wishes to move to another city, province or country with the child. Our act establishes a lower threshold for allowing a move if the parents haven’t spend substantially equal time with a child prior to the move and a higher threshold to succeed if both parents have shared substantially equal time. Just as the child support guidelines 40 percent rule for potentially departing from the normal child support payment has lead to disputes and battles over the time a child spends with each parent so too does the relocation rule regarding substantially equal time. A parent with a move away agenda may attempt to reduce the time the child parent spends with the child and vice versa
The government explanation for Division 6 of our Family Law Act explains:
- It deals with situations in which the guardians of a child do not have substantially equal parenting time. The moving guardian, who has the majority of the time with and care of the child, must show “good faith” reasons for the move and must provide reasonable and workable alternate parenting arrangements that will maintain the relationship between the child and other guardian. If the court is satisfied that those two things are established then there is a presumption in favour of the move, unless the objecting guardian satisfies the court that the move is not in the best interests of the child.
- The section also deals with situations in which the guardians have substantially equal parenting time. In such a case, both parents play a significant role in the child’s day-to- day life and it may be difficult to maintain this relationship if there were a move. Therefore, the threshold is higher and the moving guardian has full responsibility for satisfying the court that the proposal to move is made in “good faith,” reasonable and workable alternate parenting arrangements have been proposed, and the move is in the best interests of the child.
New BC Supreme Court Case Explains What Substantially Equal Parenting Time Means in BC For Child Relocation?
The recent BC Supreme Court decision of DM v EM 2014 BCSC 2091 explored for the first time what substantially equal parenting time means for a BC child relocation dispute:
Issue 2 Did the parties exercise “substantially equal parenting time” with P. at the time of the proposed relocation?
[35] E.M. argues that D.M. has not exercised substantially equal parenting time in the last year and a half, and indeed that he has never exercised equal parenting time. She also says the term of the Divorce Order which provides for equal parenting time is not relevant to this consideration. Rather, she says I must consider what has actually happened, particularly in the most recent time period before the notice of relocation.
[36] I reject E.M.’s argument on two bases. First, I conclude the term in the Divorce Order is relevant. The parties agreed to equal parenting time. They worked in a relatively cooperative fashion to share parenting time. They did not fight over particulars of the parenting time until disputes arose in the last few months. They each tried to accommodate the other. While I conclude that E.M. did have more parenting time, I find the parties entered into a practical arrangement which they believed was putting into effect the terms of the Divorce Order and would be in the best interests of P. It would not be fair to take D.M.’s acquiescence to the practical arrangements, which were dictated by E.M., as an indication he was somehow releasing his agreed right to equal parenting time.
[37] Second, I conclude the parties were in fact exercising substantially equal parenting time. That term does not appear to have been judicially considered. I accept E.M.’s statement that at all times D.M. exercised at least 35% parenting time, and some of the time as much as 45% of the parenting time. I also note that since the possible relocation was first raised, he has exercised equal parenting time, given the steps taken by his counsel.
[38] As I have concluded the term of the Divorce Order providing for equal parenting is relevant to this issue, I need not carefully examine the precise amount of parenting time each party has exercised. However, I must still be satisfied the parties have not entirely ignored the Divorce Order and that there has been substantial equality to parenting time. I conclude that they have exercised substantially equal parenting time. I base this conclusion on the fact that D.M. has, throughout their time since separation, exercised in the range of 40% of parenting time. The 40% figure, as set out in s. 9 of the Child Support Guidelines, is a useful guide for relocation purposes. The fact the 40% figure is used as the cut‑off of equal parenting for child support purposes is of significance. If that figure is considered a threshold figure for support purposes, it should also be used as a guideline for s. 69(4) purposes. While I am of the view that 40% is a good guide to what is substantially equal parenting time, I am also of the view it should not be approached as a cut‑off figure in relation to relocation applications. Rather, it is a rough guide as to the lower end of the range for equal parenting.
[39] In summary, I find that D.M. has exercised substantially equal parenting time. Accordingly, the presumption in s. 69(4) is not relevant to the analysis I must undertake in evaluating the proposed relocation.
BC’s substantially equal parenting relocation rules can be complex and confusing. Our experienced child mobility and child relocation lawyers are pleased to sit down with you to help craft a parenting time plan that addresses any current or future plans by you or your ex spouse.
