BC Child Mobility Relocation Lawyers at MacLean law handle child mobility, child relocation, and child move away cases on a regular basis. The Family Law Act has its own set of rules for relocation and the Divorce Act is now in the process of setting up a new set of rules that will take effect in the next year or so. The goals of a parent to improve their life often correspond positively with the bests interests of their children at the same time. In a new BC Appeal Court case, the concept of self-sufficiency and how the children view their parent’s comparative financial situation played a big role in the result. Contact our BC child mobility relocation lawyers immediately if you have a question about your child relocating.
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In the recent BC Appeal court decision of Duggan v. White the court had to assess an appeal that denied a parent trying to improve her financial security and that of her children a relocation to the lower mainland so she could obtain a University degree to help her qualify for a well-paying job as a probation officer. Without being able to move she would only maintain low paying employment. So, the BC Appeal court had to decide whether the goal of “pulling yourself up by the bootstraps” to a better career trump the children spending maximum time with their father who held a high paying job that required him to remain in the interior of BC? Similarly, the court had to decide: What is the impact of disallowing the mother from moving without her children given her history of being the primary caregiver? Finally, if financial opportunities are not spread evenly across BC should a parent be forbidden from moving to where the opportunities are? The decision provides a powerful analysis for BC Child Mobility Relocation Lawyers and separated parents.
Mobility Appeal Allowed To Enable Parent To Improve Themselves Which Was Best For The Children Also
The appeal engaged s. 46 of the Family Law Act. The mother who was denied relocation at trial was determined to obtain an education that would enhance her earning capacity in the face of the following facts found at trial:
- she was the primary caregiver;
- she had a history of holding low paying jobs that university education would free her from;
- the father held a well-paying job;
- she completed a diploma program at a local educational institution.
- a university degree was her next step towards her employment goals.
- obtaining the university degree by distance education likely would take longer,
- distance education rather than attendance in the lower mainland would not allow for the joint program she planned to complete,
- not attending university in person and would jeopardize the continuation of the financial assistance she had obtained.
- there was no unreasonableness or bad faith on the part of the applicant related to the proposed move.
- the judge wrongly concluded the move was not a “necessity”
Appeal Allowed -BC Child Mobility Relocation Lawyers
The Appeal allowed and an order substituted allowing relocation enabling the mother to attend university in person in the lower mainland with the children to move with her there. The trial judge erred in wrongly assuming the mother would not go to the lower mainland without her children to attend in person as opposed to distance learning. By this approach, he allowed his view of how the appellant should obtain an education to become the proxy for resolving the best interests of the child, and wrongly measured her proposal by the concept of necessity. Further, the approach did not acknowledge, in the context of the best interests of the child, either the present disparity between the economic circumstances of the parents or the uplift and strengthened the safety net that achievement of the plan would provide for the family as a whole and the child in particular.
Here are key extracts that the Court of Appeal pointed to in allowing the mother to relocate to re-educate and to provide a better lifestyle for herself and her children:
[63] A further worry raised by the trial judge’s approach to the “need” to attend the University in person – a result the judge accepted was likely to hinder Ms. Duggan’s pursuit of her legitimate educational goals – is that it may keep her in a situation of comparative under-employment for a longer period of time. Thus, while Mr. White will be able to secure his income-earning ability with the acquisition of seniority, Ms. Duggan will remain in a low-income situation, not yet working in a position that likely will provide her financial security. It is difficult to see, absent evidence particular to the case, how the prolongation of such unequal circumstances can be in the best interests of the child, as he grows to understand the relative placement of his parents in his family structure.
[64] The observations of Justice Kirby, adopted by Justice Prowse in Stav,are apposite. It is the mother of the child who, by the court order, is confined in all the ways noted by Justice Kirby, and is required to live where her financial independence, and accordingly ability to provide opportunity for the child, is constrained.
[65] I would observe that although this case concerns the living arrangements of a child and not spousal support, the stance of family law in Canada has long been to promote the economic self-sufficiency of each party within a reasonable time: e.g., Divorce Act, s. 15.2(6)(d). That stance recognizes the general advantages of individual financial independence in the family context, including the stronger safety net for the child to protect against the unexpected, consistent with the best interests of children caught in the breakdown of family relationships. This consideration, too, goes into the round.
[66] The Family Law Act directs a court to consider “the best interests of the child”, “the child’s … psychological and emotional safety, security and well-being,” and “all of the child’s needs and circumstances”. It seems to me that a full understanding of these phrases provides room for considering the concepts of equal opportunity, review of the present disparity between the economic circumstances of the parents, and recognition of the potential prolongation of that disparity consequent on the decision made by the judge on the application before him. Such considerations surely inform, to borrow a phrase from Justice L’Heureux-Dubé, “the conditions which are most conducive to the flourishing of the child”: Young v. Young, [1993] 4 S.C.R. 3 at 65 (dissenting in the result), quoted favourably in Manitoba (Director of Child and Family Services) v. C.(A.), 2009 SCC 30 at para. 88. I consider that in narrowing his review to the “necessity” of the move, the judge fell into error in failing to give a large consideration of the best interests of the child.
[68] Relocation cases present a difficult straddle. I return to my observations at the beginning of these reasons. Opportunities for employment and education are not spread evenly throughout the province. For this reason, it is not unusual for parties in family disputes to have to adapt to changes that require relocation, and to find ways to maintain and foster relationships across boundaries. In my view, just as parties must adapt, courts must allow for adaptation in parenting situations, and be assiduous in seeking to avoid results that artificially keep one of the parents down. The best interests of the child is a large concept – one which, in my view, can be quite capable of providing, with a generous stance, an opportunity for one of the parents to lift himself, or herself, closer to the level of the more advantaged parent. It is important in the pursuit of this approach that alternative ways to foster strong relationships between the child and each parent be explored fully, so as not to close the door on a parent to a sensible plan that in the longer sense will strengthen the family, even in its separated circumstance.
[69] I conclude that the order appealed must be set aside. The question then is whether we should allow the application. The judge said, “any dramatic and sudden change to Ms. Duggan’s role in [the child’s] life could therefore be expected to have adverse effects on [the child’s] wellbeing” and in that statement has recognized the value of the stability of the child residing with his mother (s. 37(2)(c) and (e)). He recognized as well that Ms. Duggan has always been the primary caregiver (s. 37(2)(d)). The judge found Ms. Duggan was at a stage of education that required University enrollment. He also recognized the stability provided by the father’s steady relationship. Omitting the judge’s discussion of necessity and his implicit assumption that Ms. Duggan would forego her request in the event the child could not be moved, these conclusions, in my respectful view, lead to a conclusion the application should be allowed.
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