Our Vancouver child mobility lawyers deal with child relocation and child move away cases on a regular basis. The Vancouver child mobility lawyers at top rated* MacLean Law know there are differences in the test for child relocation depending on whether the Divorce Act of the BC Family Law Act is used and that can be a trap for the unwary. Our Vancouver family law and Vancouver child mobility lawyers deal with cases where the moving parent shares custody and where they are the primary residential parent. Our Vancouver child mobility lawyers know the existing child care arrangement has a huge impact on whether or not a Vancouver child mobility case will be successful. Call us at 1-877-602-9900 early on to prevent a poor outcome for your child.
What Law Does A Judge Apply on A Vancouver Child Mobility Case?
A key Vancouver child mobility lawyers decision of Todd v. Todd 2016 BCSC 243 provided a great summary of the law on the proper test for a child move away and child relocation case. The Todd decision reviewed the law and then made an order designed to minimize conflict between the parents for the benefit of the child.
What Was The Child Mobility Case About?
This is a family trial. The fundamental issue in this case is whether DG, the mother, should be permitted to relocate from their present residence in Squamish, British Columbia to Ontario. She proposes that she and the parties’ daughter will live with her parents in Brookline, Ontario while she attends Durham College and that she will find work in Ontario after graduation. The father, ST, opposes the move and proposes that both parties remain in Squamish or the Lower Mainland, that Ms. G attend school in British Columbia and that the parties continue a shared parenting arrangement.
What was the result in the Vancouver Child Mobility Dispute?
The mother was not allowed to move and the court put some very specific orders in place to reduce conflict concerning the child and what powers each parent had on a shared and equal parenting plan.
Legal Principles Vancouver Child Mobility Lawyers Use – Mobility
(74) This case has been commenced pursuant to the Divorce Act. In T.K. v. R.J.H.A., 2013 BCSC 2112 at para. 39 [T.K.], Mr. Justice Verhoeven concluded that there were inconsistencies between the provisions of the Family Law Act and the Divorce Act in relation to the issue of mobility and that it was appropriate to apply the Divorce Act with respect to mobility issues. This approach is consistent with the approach in Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 at para. 20; and Hansen v. Mantei-Hansen, 2013 BCSC 876 at para. 96.
(75) Section 16(8)-(10) of the Divorce Act provides:
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
(76) In T.K., Mr. Justice Verhoeven discussed the approach to be taken as follows at paras. 41-48:
(41) The leading authority on the question of whether a court should allow a relocation of the child’s residence is the Supreme Court of Canada’s decision in Gordon v. Goertz, [1996] 2 S.C.R. 27.
(42) Although Gordon involved an application to change the terms of an existing custody order, the principles set out in Gordon are also applicable to an initial custody determination, with such modifications as may be necessary: Hejzlar at para. 22.
(43) In Gordon, the principles, insofar as they are relevant here, were summarized by McLachlin J. at paras. 49-50 as follows:
2. …the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
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4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
(44) These factors are not exhaustive: Stav v. Stav, 2012 BCCA 154 at para. 127. A more comprehensive list of potential factors and relevant considerations is set out in S.B.C. v. F.A.C., 2013 BCSC 211 at paras. 357-362.
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(46) In S.S.L. v. J.W.W., 2010 BCCA 55, the court held that in joint parenting situations where one or both parents’ needs (economic, educational or personal) are seen as requiring a change, the court’s task is to analyze the evidence in four possible scenarios, which are primary residence with a parent in the new or present location, or joint physical custody in the new or present location, without presuming that the current care-giving and residential arrangement is the preferred one. The status quo is not to be the default result. It must not be assumed that one parent cannot move. Similarly it is not appropriate to rely on any assumptions as to what the parents will actually do depending on the decision of the court: Stav at para. 130.
(47) Inevitably, the court must assess the resources available to each parent and the potential effect of those resources on each scenario, which may require an assessment of a parent’s emotional and economic prospects, because the children’s interests are necessarily intertwined with those of their parents: S.S.L. at para. 33; Stav at para. 88.
(48) In R.E.Q. v. G.J.K., 2012 BCCA 146, at para. 58, the court states that it is not clear how the principle of “great respect” for the views of the “custodial parent” should apply where both parents are custodial parents and are co-parenting. Subsequently in Stav at para. 143, the Court of Appeal stated that where there are two “custodial” parents, who have diametrically opposed perceptions as to the best interests of their own children, it is difficult to treat their views as other than neutral in the analysis.
Judge’s Know The Absence Of Conflict Is The Greatest Predictor Of A Healthy Child Post Separation
(123) In summary, I make the following orders:
a) An order for divorce granted to take effect 31 days from the date of this judgment;
b) Ms. Graham will not be at liberty to move with Coral to reside in Ontario;
c) The parties will have joint custody of Coral and will remain guardians of Coral;
d) The parties will share parenting time on an equal basis. The schedule for parenting time will be on a rotating 3-2-2-3-2-2 basis, or as agreed by the parties;
e) Both parties will exercise the parenting responsibilities set out in s. 41 of the Family Law Act;
f) The parent who has the care of Coral at the time will have the final say in any day-to-day decisions. In the event that the parties are unable to reach agreement with respect to matters such as education, extracurricular activities, religion or cultural involvement, the parties shall use the services of a parenting coordinator who shall have the authority set out in the Family Law Act and Regulations. The costs of the parenting coordinator are to be born in proportion to the incomes of the parties. The parties are at liberty to apply in the event that they cannot agree on the selection of the parenting coordinator;
g) Coral will have Facetime or telephone contact with the other parent at least every three days and Coral is free to contact the other parent whenever she wishes;
h) Facetime with Coral will not be videotaped or recorded;
i) The parties shall restrict their communications to parenting time arrangements and the general care of Coral and shall conduct all communications in a respectful manner;
j) Neither party shall speak about the other in negative or disparaging terms in the presence of Coral; ………
s) All copies of Ms. Graham’s journals and medical records in Mr. Todd’s possession will be destroyed;
t) Mr. Todd will not videotape or record Ms. Graham;
If you are involved in a Vancouver Child Mobility case call MacLean Law Vancouver Child Mobility Lawyers toll free on 1 877 602 9900. Vancouver’s top rated* family law firm as recently found by top choice awards is MacLean Law, founded by Lorne MacLean, QC. We have offices in Vancouver, Kelowna, Surrey and Fort St. John to assist you with your Vancouver Child Mobility case. Our Vancouver Child Mobility Lawyers are ready to help you and your children.
