International Child Relocation Mobility Lawyers handle national and international family law child move away, relocation and child mobility cases. Lorne N. MacLean, QC founder of our national team of International Child Relocation Mobility Lawyers explains the key principles from a new BC Court of Appeal decision. The comparative financial positions of each parent and how that affects the child is often a key consideration in these cases.
Vancouver International Child Relocation Mobility Lawyers 1 877 602 9900
In an international relocation case appeal of Hayun v. Hayun, 2022 BCCA 34 a mother and son were permitted to relocate from Vancouver to Israel while the Court provided the father frequent holiday and other parenting time.
The trial judge:
- found the child was comfortable in both countries and had family ties in both Israel and BC.
- found the mother was not skilled in the English language and was not financially independent in Vancouver, nor did she have the psychological and emotional supports that she had in Israel.
- found that the inequity in the parent’s circumstances, if both remained in BC, would impact negatively on the child.
- was also concerned that the father’s negative attitude towards the mother would negatively influence the child’s own views of his mom.
- noted that there were instances of the father’s behaviour that raised questions about his willingness to cooperate in a co‑parenting arrangement.
- observed that the disparity between the parents in BC at present, in terms of income, economic opportunity, social support, community perception, self‑sufficiency, and stability, operates against the child’s best interests.
Vancouver International Child Relocation Mobility Lawyers 1 877 602 9900
Why are mobility cases so hard for the parents and a child? It is because there is no middle ground position.
[3] Deciding where a child should live when the parents do not wish to live in the same jurisdiction as each other is one of the most difficult decisions judges are called upon to make. No matter what decision is made, the child cannot live in both jurisdictions at the same time. A fair decision requires listening to and coming to grips with the evidence of the two parents and other witnesses at trial, keeping in mind what is in the best interests of the child. Appeal courts do not have the benefit of hearing from the witnesses and must give considerable deference to the trial judge’s decision, absent an error of law. This is also necessary in the interests of finality: see Hsieh v. Lui, 2017 BCCA 51 at para. 38; Hickey v. Hickey, [1999] 2 S.C.R. 518 at paras. 10–12, 1999 CanLII 691; Van de Perre v. Edwards, 2001 SCC 60 at paras. 13–15.
Legal Principles -International Child Relocation Mobility Lawyers 1 877 602 9900
The Court of Appeal summarized the law for family lawyers and their clients:
[6] The application by the mother to relocate with the child was filed before any order had been made as to parenting arrangements and in the situation where there was no parenting agreement in place. As established in K.W. v. L.H., 2018 BCCA 204, in this situation s. 46 of the Family Law Act, S.B.C. 2011, c. 25 [FLA] applies.
[7] Section 46 incorporates the best interests of the child factors set out in s. 37.
[8] Courts are instructed not to consider whether the guardian who is planning to move would do so without the child: s. 46(2)(b). Where one parent wants to move with the child and one wants to stay, the court is to consider each parent’s plan and not improperly assume that either one would change their planned location if the judge approved or did not approve of the child’s relocation: Duggan v. White, 2019 BCCA 200 at para. 20.
[9] This means that if the status quo is that both parents currently live in the same jurisdiction in close proximity to each other, the court must not favour that status quo as being in the best interests of the child, as it presumes that the relocating parent will not move: K.W. at paras. 105–106. The relocation provisions of the FLA are not weighted for or against change: Duggan at para. 59.
[10] The courts are instructed to consider the reason for the proposed move: s. 46(2)(a). The reasons for the move should at least meet the standards of reasonableness and good faith, which can be met where the relocating parent’s reasons for moving are to better achieve self‑sufficiency: Duggan at paras. 17, 61–66.
[11] When parenting arrangements are first addressed by the court at the same time as the relocation application, as in this case, the court is to consider a “blended, in the round analysis” of all relevant factors: K.W. at para. 111; Duggan at paras. 52–53.
[30] In Duggan, this Court found it important to the relocation analysis to consider the unequal circumstances of a mother who, if not allowed to relocate, would remain in a low‑income situation and not be able to attain financial security. Justice Saunders noted:
[63] … 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.
…
Parent’s Financial Circumstances Can Be Considered As Part of Best Interests Of The Child
Our International Child Relocation Mobility Lawyers note the Court of Appeal went on to consider financial circumstances of each parent:
[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.
If you have questions for our International Child Relocation Mobility Lawyers call us now at 1 877 602 9900
