Surrey Family Law Act Child Relocation Lawyers deal with the emotional and difficult question of child mobility, child move away and child relocation cases. When a parent wants to move away, often for their career or a new relationship, the Court brings a child focused approach to solving the question of whether the child goes or stays. The BC Court of Appeal just decided a case and allowed a move of a child from BC to Nova Scotia. The Court pointed out it’s very important to apply the correct sections of the BC Family Law Act. The area is technical and a skilled and top rated family lawyer can help you increase your chances of success. MacLean Law is a multiple award winner as Vancouver’s top family law firm.
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In today’s blog rising star articling student Gurdeep Randhawa of our South Surrey office, answers the question:
What happens when one parent wants to move to a new city or country and take the parties’ child away from the other parent with them?
The Family Law Act deals differently with relocation depending on whether there is an existing written agreement or order respecting parenting arrangements for children.
If there is no written arrangement or order respecting parenting arrangements and the child’s guardian plans to relocate, Division 2 of the Family Law Act applies. If there is an existing written agreement or order, and the child’s guardian plans to relocate, Division 6 of Part 4 of the Family Law Act applies. See what the differences are.
Different Tests Explained By Top Surrey Family Law Act Child Relocation Lawyers 604-576-5400
A relocation application under Division 6 of the FLA places a higher burden on a parent seeking relocation, whereas a relocation application under Division 2 of the FLA is not as stringent. Division 6 assumes that an existing agreement or order respecting parenting arrangements has been made in the best interests of the child and in those circumstances; deference should be given to that pre-established arrangement. Under Division 2, where there is no order or agreement, there is no rationale for the same deference: K.W. v. L.H., 2018 BCCA 204.
What happens when a parent wishes to relocate in circumstances where there is no order, interim or otherwise, respecting parenting arrangements at the commencement of the proceedings, but before trial such an interim order is made? This issue had not yet been determined by the B.C. Court of Appeal until May 25, 2018.
Court of Appeal relocation decision
The British Columbia Court of Appeal in a recently published decision in K.W. v. L.H., 2018 BCCA 204 stated that the trial judge erred in addressing relocation under Division 6 of Part 4 of the FLA, but should have proceeded under Division 2 of the FLA, as the relocation application was for an initial determination of parenting arrangements. Interim orders issued after notice of relocation do not move the analysis to Division 6 of the FLA. The B.C. Court of Appeal in applying the correct provisions of the FLA, overturned the decision of the B.C. Supreme Court and found that relocation was in the best interests of the child, specifically relocating from B.C. to Nova Scotia.
In K.W. v. L.H., 2018 BCCA 204, the unanimous court found:
[88] In this case, the Mother gave notice of her intention to relocate on November 6, 2015. On November 30, 2015, only after notice of relocation had been given, the Father filed his application for interim relief. The application was brought pursuant to s. 45 of the FLA for an order respecting parenting time. It referred to both s. 46 and s. 69 of the FLA. The application noted that the Mother had advised that she wished to relocate the child to Nova Scotia and that the Father was concerned she was attempting to limit his parenting time in order to assist her relocation application.
[89] In her reasons, Madam Justice Duncan emphasized that she was not in a position on an interim application to make findings of fact and that the parties’ allegations and their effect on parenting issues needed to be tested at trial. While she ordered that neither party could remove N from British Columbia without the agreement of the other or court order, she also held that the issue of relocation, as well as the final determination of the parenting schedule, should be referred to the trial list for a determination with priority.
[91] In this case, the trial judge held that the determining date on which the court is to consider if an agreement or order exists respecting parenting arrangements is the date when the application to relocate is heard. If the trial judge is correct it would mean that a party may not know until long after the commencement of proceedings the basis upon which it will be decided. With respect, I cannot agree. Such an interpretation is contrary to the legislative intent that when an application for an initial parenting determination has a mobility component the application is to be decided under s. 46. Parties involved in mobility litigation are entitled to know from the outset the legal framework that will govern their dispute. This allows them to take appropriate steps to prepare for the hearing. The framework is not dependent on whether an interim order is made while the mobility dispute is pending. An interim order made after notice of relocation has been given does not change the fundamental issues which the court has to determine on an initial application. Such an interim order does not give rise to any legitimate expectations as to final parenting arrangements.
[92] I agree with Justice Punnett and adopt his analysis set out at paras. 54–60 of S.J.F. reproduced above. Absent an existing agreement between the parties, when an initial application is brought for an order respecting parenting arrangements under s. 45 and a guardian indicates in his or her pleadings or by notice in writing of an intention to change the child’s residence, s. 46 applies notwithstanding that an interim order is made in the course of the proceedings. To the extent that L.J.R., A.J.D., Pepin, and Wong suggest otherwise, those cases were wrongly decided and should not be followed (emphasis added).
[93] Whether an interim order made in advance of any claim or notice of intention to relocate would transfer the matter from Division 2 to Division 6 raises somewhat different policy considerations. Arguably, such an order may create legitimate expectations about existing arrangements, particularly if the order has remained in effect for an extended period of time. This issue however does not arise on this appeal and I will say no more about it.
[94] In the result therefore I find the trial judge erred in law in deciding the relocation application pursuant to Division 6.
