Vancouver Calgary Child Relocation Mobility Lawyers like the top rated* Vancouver and Calgary family lawyers at MacLean Law focus on the child in potentially life altering child relocation cases. Our Vancouver Calgary Child Relocation Mobility Lawyers handle trials and appeals all the way to the Supreme Court of Canada. In fact our founder of our team of Vancouver Calgary Child Relocation Mobility Lawyers, Lorne MacLean, QC was successful counsel for Ms. Young in the oft cited leading Supreme Court of Canada child custody case of YOUNG v. YOUNG.
We are Western Canada’s largest family law firm and a three time winner of Top Choice Awards “Best Family Law Firm in Vancouver”. We have 6 offices across Western Canada. Click here to meet with us.
Vancouver Calgary Child Relocation Mobility Lawyers 1-877-602-9900
A recent BC Court of Appeal decision of Hellberg v. Netherclift overturned a summary trial relocation decision and held the mother could not move to England while the issue of her moving from Nelson to the UK was sorted out at a trial. The parties were ordered to share interim custody until a trial decision.
Vancouver Calgary Child Relocation Mobility Lawyers Official Summary
The appellant challenges two orders. The first order was made following a summary trial. It granted the respondent joint custody of the parties’ four-year-old child and permitted her to relocate with the child from British Columbia to the United Kingdom in order to pursue more lucrative employment there. The second order dismissed the appellant’s application to reopen the trial on the basis of new evidence.
Held: Appeals allowed. In the trial and the application to reopen the trial, the judge misapprehended material evidence regarding the parties’ economic prospects in British Columbia. The misapprehension of the evidence went to the core of the judge’s reasoning process.
The trial judge also erred in principle by equating the respondent’s best interests with the child’s best interests and by concluding that relocation would serve the child’s best interests in the absence of any evidence that the respondent’s difficulty securing full-time, remunerative employment in British Columbia was having a detrimental impact on the child.
The respondent’s relocation application was dismissed. An interim order was made providing that the parties share equally custody of the child on a schedule to be agreed upon by them. Issues related to custody, access and mobility rights were directed to be resolved by final order made following a trial of all matters raised in the respondent’s notice of family claim.
The Test Used By Vancouver Calgary Child Relocation Mobility Lawyers
In ordering the matter to proceed to trial rather than be decided summarily the court provided a summary of the factors to be considered on child mobility cases for Vancouver Calgary Child Relocation Mobility Lawyers and their clients:
[76] Gordon v. Goertz established that the only issue in a case of this kind is the best interests of the child. Each case will turn on its unique circumstances, but the best interests of the child must be determined from a child-centred perspective. The focus of the inquiry is not the interests and rights of the parents, but the ability of a parent to satisfy the child’s needs is a relevant consideration. In a case involving two custodial parents, the following legislative goals and factors should be considered (see Gordon v. Goertz at 61):
1. The existing custody arrangement and relationship between the child and each of the custodial parents;
2. The principle embodied in s. 16(10) of the DA that a child should have as much contact with his or her parents as is consistent with the child’s best interests;
3. The views of the child, where it is appropriate to solicit those views;
4. The 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;
5. Disruption to the child of a change in custody; and
6. Disruption to the child consequent on removal from family, schools, and the community the child has come to know.
[82] A proposed move motivated by financial considerations may “conduce to the best interests of the child”: Karpodinis v. Kantas, 2006 BCCA 272 at para. 27. In Stav, this Court emphasized that a move said by the relocating party to be justified as a result of financial or emotional gains that will ultimately inure to the benefit of the child is a relevant consideration to weigh in the balance:
Can A Summary Trial Work On Child Relocation Ask Clients?
[100] In retrospect, it is our view that this case ought to have been referred to the trial list pursuant to Rules 11-3(15) and (17) of the SCFR. The resolution of custody and mobility applications on an incomplete record entails a number of risks. Chief among them is that a final order may be made uninformed by significant evidence that would likely have emerged in a conventional trial. Once made and entered, that final order can only be varied upon demonstration of a material change in circumstances. Given what is at stake in applications of this kind, particularly those involving international relocation from Canada, the parties must take steps to ensure that the record thoroughly addresses the relevant factors.
[101] In saying this, we do not wish to be taken as suggesting that a presumption arises that mobility issues are best resolved in a full-blown trial: see, on this issue, M.T. v. R.A., 2014 BCSC 795, wherein Saunders J. addressed, in the context of the FLA, the benefits associated with the summary determination of mobility applications in cases where there is a written agreement respecting parenting arrangements. Parenthetically, we note that M.T. was a case in which a s. 211 report was ordered to be prepared in advance of the summary trial.
Vancouver Calgary Child Relocation Mobility Lawyers Say Section 211 Custody Reports Can Help
The BC Court Of Appeal also commented on the lack of resources for government funded reports and why summary trials might be less appropriate than other types of cases for summary trial resolution:
[102] We also recognize the practical difficulties for parties of limited means in putting expert evidence addressing the best interests of the child before the court. Regrettably, provincial resources allocated to the preparation of publicly funded reports addressing the needs of a child have not kept pace with demand and delays in obtaining such reports are considerable. Although the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, endorsed enhanced use of summary trials to improve access to justice, the Court did not purport to set down criteria guiding the appropriateness of a summary trial in case-specific contexts. At the end of the day, the suitability of a matter for determination by way of summary trial is a case-specific inquiry. We say only that in this case the child’s interests would have been best served by a conventional trial in which the parties personally appeared before the judge.
[103] In addition, it is always important to remember that at the hearing of a summary trial a judge is not required to grant judgment if he or she is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or is of the opinion that it would be unjust to decide the issues on the application. This is so regardless of whether the parties are in agreement that the matter be resolved by way of summary trial, and is of particular import when the child whose best interests are being determined is not represented at the hearing.
