As highly experienced divorce and family law practitioners, the lawyers at MacLean Law know that when one parent needs child relocation and must therefore either leave children with a custodial parent or take them to the new home as part of their own custodial duties, this can be one of the most emotionally difficult situations that arise. It is often a classic ‘no win’ situation for the child because, either way, time with one of his or her parents may be greatly reduced.
Not only are child relocation and mobility cases emotionally difficult, they also present significant legal challenges, especially if there is joint or shared custody and/or guardianship or whenever the other parent opposes the move. At MacLean Law, we understand all the emotional, financial, and legal hurdles involved in these complex child and parent relocation and mobility cases and can help you regardless of whether you are seeking the relocation or are opposing it.
The federal Divorce Act, which allows for custody orders when parents are married, has one set of rules for relocation. BC’s Family Law Act, on the other hand, establishes sometimes conflicting rules for relocation that apply to both married and unmarried parents–and different rules that apply to the move depending on whether a parent has guardianship and has spent equal time with the child prior to the move.
CANADA’S DIVORCE ACT REGARDING CHILD RELOCATION, MOBILITY, AND MOVING AWAY
The leading authority on the test to be applied to relocation, child mobility, or child move-away cases is Gordon v. Goertz, [1996] 2 S.C.R. 27. The test comprises a two-step process:
- The applicant must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
- If the threshold is met, the applicant must establish that the proposed move is in the best interests of the child, given all the relevant circumstances for the child’s needs and the ability of the respective parents to satisfy them. Relevant circumstances include:
a. The existing custody arrangement and the relationship between the child and the custodial parent
b. The existing access arrangement and the relationship between the child and the access parent
c. The desirability of maximizing contact between the child and both parents
d. The views of the child
e. The custodial parent’s reason for moving
f. The disruption to the child, given a change in custody/removal from family, schools, and the community he or she has come to know
In One v.One, the BC Supreme Court listed some common-sense factors to look at in child relocation, mobility, and move-away cases, all focused on the best interests of the child:
- The parenting capabilities of and the children’s relationship with parents and new partners
- The employment security and prospects of the parents and, where appropriate, new partners
- The access to and support of extended family;
- The difficulty of exercising the proposed access and quality of the proposed access if the move is allowed
- The effect on the children’s academic situation
- The psychological and emotional well-being of the children
- The disruption of the children’s existing social and community support and routines
- The desirability of the proposed new family unit for the children
- The relative parenting capabilities of each parent and the respective ability to discharge parenting responsibilities
- The children’s relationship with both parents
- The separation of siblings
- The retraining or educational opportunities for the moving parent.
THE BC FAMILY LAW ACT REGARDING CHILD RELOCATION, MOBILITY, AND MOVING AWAY
Division 6 of the BC Family Law Act creates a framework for addressing cases where a parent wishes to relocate with a child.
There is a difference between how guardians are treated and how persons with contact with the child are treated under the Family Law Act.
Guardians have parental responsibilities toward the child and are charged with raising the child; whereas persons with ‘contact’ have time with a child but do not have any parental responsibilities or decision-making authority. Although both guardians and persons who have contact with a child are entitled to notice of a relocation, only a guardian can apply to prevent a move. A person with contact is provided notice only to ensure that there is adequate opportunity to make appropriate contact arrangements. This difference may be unconstitutional and MacLean Law’s family lawyers are prepared to challenge this portion of the Family Law Act.
The Family Law Act’s child relocation rules are complex, but here is a brief summary:
- A guardian of a child who plans to relocate, with or without the child, is required to give 60 days’ notice to other guardians or persons having contact with a child. The notice must contain the date of the proposed relocation and the name of the city, town, or area of the new residence.
- Co-operation is encouraged between the guardian proposing to move and those whose relationship with the child may be affected by the move by imposing a duty to use best efforts to resolve issues arising from the move
- The court must consider the factors listed in the general “best interests of the child” test in Section 37 of the Family Law Act and must also specifically consider whether the proposal to move is made in “good faith” and whether reasonable and workable alternate parenting arrangements have been proposed
- If the move is allowed, the court will likely make necessary changes to the parenting arrangements to facilitate a relocation and to make orders that ensure compliance with a relocation order.
No area of child custody and guardianship is more technical and confusing than child relocation, mobility, and move-away cases. The tremendous emotional impact and stakes for both parents and child call for immediate consultation with a highly skilled MacLean Law practitioner experienced in child relocation. The firm also handles cases related to Interjurisdtional Support Orders (ISO) involving the recognition or variation of family support orders made in other Canadian provinces and territories or in specified foreign countries.
