Relocation and Spending Time With Your Child
How does substantially equal parenting time relocation work? The rules for moving away with your child differ depending on whether you have substantially equal parenting time with your child after separation or less frequent child contact.
In Canada, the overriding rule for parenting time of separated parents with their children is that children should have maximum contact with both parents. This means that the child should have as much contact with each parent to the extent that it is consistent with the child’s best interest to do so. However, if both parents have substantially equal parenting time but one parent wishes to relocate to another city, province, or country, conflict often arises over whether the relocating parent should be allowed to bring the child with them, or if the child should remain in with the parent who stays in currently residing area. Under the new Family Law Act, new rules have emerged and precedents are emerging from the courts as to how to apply these rules.
New BC Supreme Court Case sets out test for relocation when parents have substantially equal parenting time
In R. C. v. R. E. H., 2014 BCSC 2348, the mother of five-year old L.H. wished to move to Williams Lake, BC with her new partner, and bring L.H. with her. The child’s current home was in Surrey, where the parties both lived, and the child had approximately equal time with both her mother, R. C., and her birth father, R. E. H. However, the move to Williams Lake would reduce time spent with the birth father from approximately 50% to 25%.
The court decided on whether to allow the relocation under the new Family Law Act (FLA), which replaces the previous test under the Family Relations Act:
[60] The FLA involves an analysis that is different from the traditional views set out in Gordon v. Goertz, [1996] 2 S.C.R. 27 regarding the relocation of children, where the process begins with applications to vary the terms of existing custody orders and the party seeking a variation must first establish a material change of circumstances since the last order was made.
[61] Under the FLA there is no need to find a change in circumstances as a threshold issue before considering changes in the residence of guardians or children.
[62] The FLA focuses on the best interests of the child and brings into consideration instances where there is no prior agreement or order in place respecting parenting arrangements, and others where there is an agreement and the issue is whether to vary a parenting regime to permit a change in one guardian’s residence or the child’s residence.
Factors in Test set out under s. 69 of the FLA
If the parties share substantially equal parenting time with the child, the test for relocation under s. 69 of the FLA is:
[69] S. 69(5) addresses the situation in which the guardians have substantially equal parenting time with the child. The relocating parent must establish:
- the proposed relocation is made in good faith;
- she has proposed reasonable and workable arrangements to preserve the relationship between the children and the other parent and other persons who have a significant role in the children’s lives; and,
- The relocation is in the child’s best interests.
[73] If the relocating parent cannot 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, then the proposed relocation may not be in the child’s best interest.
[76] To determine whether the relocation is in the best interests of the child, s. 37(2) directs the court to consider all of their needs and circumstances, including the following:
(a) the child’s health and emotional well-being;
(b) the child’s views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child’s life;
(d) the history of the child’s care;
(e) the child’s need for stability, given the child’s age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.
[78] Finally, under s. 69(7), the court is precluded from considering whether a guardian would still relocate if the child’s relocation were not permitted.
[112] As per s. 69(6), whether a proposed relocation is advanced in good faith requires consideration of the all relevant factors, including:
(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.
The Best Interests of the Child
The court in R.C. heard expert evidence on both parents’ ability to parent and the child’s development and best interests, including the following:
The child’s views
[138] I.H. expressed a view to the claimant that she felt that she does not have a permanent home because of her movement between the claimant and respondent’s residences. It is that I.H. has a sound relationship with the claimant, respondent, and M.C., who plays an important role in her home. In my view, I.H. is too young to be able to articulate a reliable opinion or view as to whether she would prefer to remain in Surrey or relocate to Williams Lake.
The nature and strength of the relationships between the child and significant persons in the child’s life
[140] I accept his opinion that given I.H.’s age, it is important that she have a consistent concept of her parents’ history and involvement. It is important that she have good contact with each parent.
The History of the child’s care
[142] I.H. has been well cared for by the claimant and respondent. Each party has engaged their parents in assisting in their child’s care. I.H. seems to have a good relationship with both sets of grandparents.
The Court’s Decision in R.C.
The court made a key finding that geographical distance reduces a parents’ contact with their child which inhibits a child’s attachment to that parent:
[154] Dr. Colby reiterated that studies point out that a child’s development is hampered and faces increased risks of their emotional and psychological status if there are large distances between their residences. Non-residential fathers customarily have diminished roles and eventually decrease their parent-child involvement due to geographical distance. This decrease in contact can inhibit the attachment of a child to that parent and undermine ongoing parent-child relationships.
In closing, the court decided that the relocation was not made in good faith and also not in the child’s best interests, and thus declined to make an order for relocation. The move to Williams Lake would result in a great distance between the child and her birth father, which would cause strain and distancing in the young child’s relationship with her birth father. The mother’s reasons for moving to Williams Lake for greater financial security and to improve her and L.H.’s quality of life were also tenuous at best. It was decided that L.H. was too young to be separated from her birth father for such lengthy periods of time and geographical distance, and it would be best to maintain the current regime, at least until the child was a bit older.
The many factors the court must consider in determining whether to allow a parent to relocate with their child makes each case unique and complex. If you are considering a move or your ex-spouse is considering move, call us today for a consultation at 1-877-602-9900. Substantially equal parenting time relocation cases are complex and getting advice immediately from a top lawyer is critical.
