The top Child Relocation within BC’s Lower Mainland lawyers know that child relocation is one of the trickiest and hardest to decide of all child custody, parenting time and access cases. Moves to other countries or across Canada presents challenges of weighing the increased benefits of the moving plan for the child against the risk of loss of maximum contact by a BC child to one of their parents. As the blog below shows closer moves involve the application of the same principles used for more distant relocation’s.
Small Moves: Child Relocation within BC’s Lower Mainland
Our energetic articled student and member of our Child Relocation within BC’s Lower Mainland team writes today’s blog on a recent Child Relocation within BC’s Lower Mainland case.
BC child “move aways” also called child relocation cases can create new parenting challenges for families, especially when one parent is moving out of the province. Often, these moves are far away enough that it becomes difficult, if not impossible, for the parent without primary residence of the child to exercise regular access. Thankfully, the court has developed a certain set of principles in order to make a decision about whether to allow one parent’s application to relocate with the child. But how do the courts decide in relocation cases when the move is relatively close by? A recent new case handed down by the BC Supreme Court, Kowalchuk v. Dass, 2016 BCSC 1857, may provide some answers.
Child Relocation within BC’s Lower Mainland Richmond To Mission
This case involves a couple, Ms. Dass and Mr. Kowalchuk, who became pregnant soon after starting a relationship. They lived with their son, now five years old, in a suite in Ms. Dass’ mother’s house in Richmond. After separating, Mr. Kowalchuk moved into his parent’s house in Richmond. Soon after, Ms. Dass claimed she was considering moving to Mission, which is a 1.5 hour drive from Richmond. Ms. Dass began dating Mr. Jasper, who moved in with her. Ms. Dass soon became pregnant again, and began looking with Mr. Jasper for a larger place to accommodate their growing family. The housing options around Richmond and Vancouver did not fit within their budget, so they widened their search to other areas. Mr. Dass brought a family claim for joint guardianship and shared parenting, and to prevent Ms. Dass from moving outside of Richmond with the child. Ms. Dass brought notice of relocation, but withdrew on a few occasions after she was unable to find housing. There was no written agreement or court order preventing relocation of the child.
After some failed attempts at securing housing, Ms. Dass and Mr. Jasper finally signed a lease for an apartment in Mission on April 7, 2016, and provided notice to Mr. Kowalchuk the same day. They moved in on May 1, and the child moved in with them shortly after. Mr. Kowalchuk brought a new application to prevent Ms. Dass from relocating their child outside of Richmond without a court order or his consent. The issue was not decided in chambers, but moved to trial.
At trial, the Honourable Madam Justice Gropper looked at all these circumstances in tackling the issue of relocation, and applied principles from the Family Law Act (FLA) and case law in her analysis.
First, she pointed to section 66 of the FLA which requires relocating parents to give 60 days’ notice to the other parent of the date and place of relocation. Second, because the parents here had “substantially equal” parenting time with the child, the parent wanting to move must show (1) the proposed relocation was in good faith, (2) reasonable arrangements have been proposed to preserve the relationship between the child and the other guardian (in this case, the father), and (3) the relocation is in the best interest of the child (section 69(4) and (5) of the FLA).
The judge then turned to general principles in the case law. First, she stated that the factors in Gordon v. Goertz apply to this case, even though the Divorce Act was used in that case, because the parties were married:
[37] The Supreme Court of Canada’s decision in Gordon v. Goertz, [1996] 2 SCR 27 continues to have application. Although that decision rests on the provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), there are aspects of it which continue to apply where decisions are made under the Family Law Act. Those factors include: the desirability of maximizing contact between the child and both parents; disruption to the child of a change in custody; and, disruption to the child consequent on removal from family, schools and community that he has come to know.
Next, Justice Gropper referred to C.M.B. v. B.D.G., 2014 BCSC 780, where the judge held that best interests of the child must be considered if any of the first two criteria are not met under FLA s. 69:
[38] In C.M.B. v. B.D.G., 2014 BCSC 780, Madam Justice Fleming addressed the interpretation of s. 69(4) and (5) and the court’s ability to address the best interests of the child. At paragraph 78, the Court concluded that:
… the correct approach under s. 69(4) and (5) is for the court to consider whether the proposed relocation is made in good faith and whether reasonable and workable arrangements have been proposed. If one or both of these criteria are not met, the court must still go on to consider whether the proposed relocation is in the child’s best interests.
Lastly, the judge laid out principles for determining if a proposed move is made in good faith:
[39] Section 69(5) requires that the reasons for relocation have both a subjective and objective dimension. Subjectively, where a guardian is found to have been making a move to frustrate the other guardian’s involvement with the child, that is indicative of a lack of good faith. Objectively, the court can consider the reasons for the move based on the facts. The objective reasonableness or lack thereof for a move weighs in favour against the subjective good faith of the relocating guardian. An unreasonable move suggests that the relocating guardian is not acting in good faith: L.J.R. v. S.W.R., 2013 BCSC 1344.
[40] In considering good faith and the best interests of the child, albeit in the context of s. 46 of the Family Law Act, Mr. Justice Kent set out this test in Walker v. Maxwell, 2014 BCSC 2357 at paragraph 88:
In my view s. 46(2)(a) requires the court to assess the reasonableness of the relocating parent’s desire to move. If the move is in pursuit of a legitimate interest and improvement in the quality of life, or otherwise accords with common sense and good faith, that should be sufficient to pass muster. It is only when the reasons lack substance or worse, reflect inappropriate motives, that the reasons for the change in location might militate against permitting it to occur.
Having considered the relevant sections of the FLA and case law, the judge applied these principles to the facts of the case. The judge found that, despite Mr. Kowalchuk’s arguments to the contrary, Ms. Dass was relocating in good faith – the evidence showed she had tried to look for affordable housing closer to Richmond and was unable to find anything that she and Mr. Jasper could afford. With respect to notice, Ms. Dass did not give 60 days’ notice before she moved. However, the judge decided to be realistic on this point:
[61] I accept that Ms. Dass did not provide requisite notice. I am not critical of her for not proceeding with her earlier applications to relocate as she had not found a place to move and such an application would be unsuccessful. I can be critical of her moving before Mr. Kowalchuk’s application was heard, but I also must be practical. Does the court require that a relocating family remain where they are to satisfy the time requirements? Certainly Ms. Dass could have remained in Richmond another 30 days. There is evidence that her mother’s two‑bedroom suite remained available until July 1, 2016. Should she have incurred double rent in order to satisfy the time requirements? [Emphasis added]
[62] The evidence satisfies me that the lack of availability of rental housing in the Lower Mainland based on the length and search undertaken by Ms. Dass and the short opportunity for tenants to accept landlord’s offers also provided by the evidence of Ms. Dass makes the 60‑day notice difficult or impossible. Even if Ms. Dass stayed in Richmond for another month to satisfy the required notice period, I would still be exercising the same considerations as I am today. It would simply be more expensive for Ms. Dass. For these reasons I find that Ms. Dass has established that her move to Mission was made in good faith. [Emphasis added]
In addition to finding the proposed move was made in good faith, Justice Gropper also found Ms. Dass’ proposed parenting arrangements were reasonable, especially because the father was not working and was available for the parenting times suggested. The judge also considered that Ms. Dass and Mr. Jasper were better able to exercise their parental responsibilities, as they were both employed, while Mr. Kowalchuk was unemployed, relying on his parents for housing and support.
Child Relocation within BC’s Lower Mainland Allowed
In conclusion, Justice Gropper stated:
[84] Having considered all the relevant factors in the circumstances I find that L.’s best interests are met by living with his mother in Mission and having parenting time with his father as proposed. This protects to the greatest extent possible L.’s physical, psychological and emotional safety, security and well-being.
[85] Based on all of the above I find that the factors, particularly the nature and strength of his relationships and Ms. Dass’s superior ability to exercise her responsibilities, favour the relocation. The other factors are neutral and equally served if L. stays in Richmond or moves to Mission.
[86] I find that the application has been made in good faith and there are reasonable arrangements in place to preserve the relationship between L. and his father. The application is therefore granted.
Child Relocation within BC’s Lower Mainland Require Top Rated Lawyers Like MacLean Law’s Family Lawyers
The analysis in this case is important for any parent pondering a move that is relatively close by, especially one that takes place in the precarious and competitive Lower Mainland housing market.
Call our child relocation team headed by Lorne N. MacLean, QC. if you have a difficult child mobility case across BC or in Calgary Alberta toll free at 1-877-602-9900.
