Relocation of Children: the BC Family Law Act
With the coming into force of the Family Law Act, there has been considerable case law dealing with applications for the relocation of children. What follows is a summary of those cases as reported in CanLII; the Supreme Court of British Columbia website and the Provincial Court of British Columbia website in chronological order by reported date.
A.B. v. C.D., 2014 BCSC 1081 (CanLII), the court allowed a relocation of the children from Vancouver to Victoria; the court stated the following with regard to mobility or relocation applications:
[122] Trial and appellate courts frequently struggle with the difficult forces at play when both parents live in the same city and one parent wishes to move.
[123] A number of recent decisions are instructive. The following principles emerge.
[124] When both federal and provincial legislation are pleaded, the mobility order should be made under the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), and not under the Family Law Act, S.B.C. 2011, c. 25,or the Family Relations Act: Hansen v. Mantei-Hansen, 2013 BCSC 876 (CanLII), 2013 BCSC 876 at para. 96, citing Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 (CanLII), 2011 BCCA 230 at paras. 18-21. Sections 16–17 of the Divorce Act address custody orders as well as the variation, rescission and suspension of such orders.
[125] The best interests of the child are the foremost and overall consideration: Hejzlar at para. 28; Nunweiler v. Nunweiler, 2000 BCCA 300 (CanLII), 2000 BCCA 300 at para. 28. The focus is not on the interests and rights of the parents: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 49. In cases like this, courts are called upon to make an “educated prediction” as to the best interests of the children, based not only on evidence of their old life, but also evidence of what the parents believe will transpire in their new life: S.S.L. v. J.W.W., 2010 BCCA 55 (CanLII), 2010 BCCA 55 at para. 29.
[126] The first task is to determine which parent is to have primary residence: S.S.L. at para. 24.
[127] There is a human tendency for the trial judge to prefer the status quo. It preserves the relationship between the child and the non-moving parent. But to approach the issue with a preference for the existing residences of the parties is to err in principle: Hejzlar at para. 46.
[128] Custodial parents, like other Canadians, have the right to relocate. Courts are not arbiters of the reasonableness of every decision a custodial parent makes. In MacPhail v. Karasek, 2006 ABCA 238 (CanLII), 2006 ABCA 238, the Alberta Court of Appeal made this pithy observation:
[44] … [I]t is not an option to conclude a child’s best interests are served by both parties living in the same place any more than it is an option to consider that it is in the child’s best interest that their parents remain together.
Gilmour v. Herrick, 2013 BCSC 1591 (CanLII)— 2013-08-30: the court declined to deal with the application for relocation by the mother in this case on the basis that there was no material change in circumstance since the making of the last order. In this case, the court referred to the Court of Appeal of Boychuk v. Singleton, 2008 BCCA 355 (CanLII), 2008 BCCA 355 at paras. 14 – 15 where it was held that while s. 20 of the Family Relations Act, R.S.B.C. 1996, c. 128 (replaced by s. 37 of the FLA) does not adopt the language of “material change of circumstances” as set out in the leading Supreme Court of Canada decision Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 on the best interests of the child, the “material change of circumstances” test still applies.
L.K. v. M.M., 2013 BCPC 225 (CanLII)— 2013-08-27: the court refused the application for relocation from Trail to Castlegar.
T.C. v. S.C., 2013 BCPC 217 (CanLII)— 2013-08-13: the court allowed the application for relocation from Port Coquitlam, BC to Bellingham, Washington, USA.
L.J.R. v. S.W.R., 2013 BCSC 1344 (CanLII)— 2013-07-26: the court declined to allow the relocation from Kelowna, British Columbia, to Spring Hill, Tennessee, U.S.A.:
De Jong v. Gardner, 2013 BCSC 1303 (CanLII)— 2013-07-22: the court stated the following with regard to the interaction between the Divorce Act and the Family Law Act in the context of a relocation application:
[64] With respect to the best interests of the child, s. 37 of the Family Law Act provides:
37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:
(a) the child’s health and emotional well-being;
(b) the child’s views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child’s life;
(d) the history of the child’s care;
(e) the child’s need for stability, given the child’s age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.
(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.
(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.
[65] In Hansen v. Mantei-Hansen, 2013 BCSC 876 (CanLII), 2013 BCSC 876, Madam Justice Humphries considered the approach a trial judge should take when a case involves the potential application of both the Divorce Act and the Family Law Act and the relocation of a child. Referring to the former Family Relations Act and the new Family Law Act and their relationship to the Divorce Act, she said at paras. 93-96:
[93] In each statute, the only concern now is the best interests of the children. Whereas the FRA stated that the best interests of the child were paramount, the new Act, like the DivorceAct, says those interests are the only consideration. This is so, even if this situation is treated as one of a change in primary residence rather than an initial order (s. 16(8) and s. 17(5) of the Divorce Act; s. 37(1) and s. 69(5)(b) of the new Act).
[94] The Divorce Act leaves the consideration of what is in the best interests of the children to the consideration of judges, aided by the evidence they have heard, their observations of the witnesses, their common sense, and an extensive history of case law. The best interests of the children may be considered in the context of the myriad of individual and complex relationships and factors that underlie that concept. This is also reflected in the phrase in s. 16(8) giving context to the consideration:
…the courts shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
[95] Under the new Act, a list of factors is set out that “must” be considered when assessing the best interests of the children, an analysis which is to be undertaken in the context of protecting “the child’s physical, psychological and emotional safety, security and well-being” (s. 37(3)). As already noted, the listed factors are a composite of considerations addressed by courts in case law under the Divorce Act and the FRA. While common sense might suggest that there should be no incompatibility in the concept of the “best interests of the children”, whether the analysis is undertaken under the Divorce Act or the new Act, it remains to be seen how the change from “paramount” under the FRA to “only” will be interpreted, and how the qualifying child-centered phrase in s. 37(3) will influence the practicalities of decision making.
[96] Since both federal and provincial legislation are pleaded in this case, I am of the view that the course of action suggested in Hejzlar is the appropriate one – that is, there should be an order for joint custody under the Divorce Act, with consideration given to primary residence. Thus I will address the best interests of the children under the Divorce Act.
[66] In the circumstances of this case I consider the approach of Humphries J. to be appropriate and I will address the best interests of the child in the context of the cases decided under the Divorce Act. Neither party argued to the contrary: http://canlii.ca/t/fzrd4
L.L.J. v. E.J., 2013 BCSC 1233 (CanLII)— 2013-07-11: the court allowed the change of a child’s primary residence to Keremeos, B.C. from the Metro Vancouver area.
M.K.A. v. A.F.W., 2013 BCSC 1415 (CanLII) — 2013-07-05: the court allowed the mother to move from Kelowna to Edmonton for health reasons and financial reasons:
K.A.C. v. R.J.M., 2013 BCSC 1103 (CanLII) — 2013-06-24: although no formal analysis as per the FLA sections dealing with relocation, this case treated a move from White Rock to the UBC area as a relocation; cross reference to Berry v. Berry, 2013 BCSC 1095 (CanLII) — 2013-06-21 where the court was of the view that a move from Surrey to the North Shore was not a relocation.
J.P. v. J.B., 2013 BCPC 168 (CanLII) — 2013-06-19: the mother was allowed to relocate from the Sunshine Coast to Surrey to pursue a better economic future for the child.
S.G. v. J.P., 2013 BCPC 126 (CanLII): court refused relocation from Quesnel to Delta as it was not in the child’s best interests.
Hansen v. Mantei-Hansen, 2013 BCSC 876 (CanLII): the court refused a relocation from Nelson, B.C. to Regina, Saskatchewan.
De Jong v. Gardner, 2013 BCSC 1303 (CanLII) – at paragraph 101: In the end result, it is my view that the best interests of Gavin would be served by his return to Coquitlam (from Calgary) with a shared parenting arrangement. Assuming that the respondent returns to B.C., it would be appropriate for Gavin’s primary residence to be with her. For this arrangement to work effectively, it is important that she reside in a community that is reasonably close to Coquitlam. As both parties have vehicles, the transportation of Gavin between their residences should not pose a problem.
L.J.R. v. S.W.R., 2013 BCSC 1344 (CanLII): child ordered returned from Tennessee to Kelowna, B.C. due to the claimant failing to make out a good faith argument and in any event, the relocation not in the child’s best interests. As for the good faith component, the court stated at para. 73:
The reasons for the proposed relocation have both a subjective and objective dimension. Subjectively, it is easy to imagine examples where the reasons may not be indicative of good faith — for example, where a guardian is found to be making a move to frustrate another guardian’s involvement with the child. Objectively, I find that the court can consider the reasons for the move based on the facts before it. The objective reasonableness or lack thereof of the reasons for a move can weigh in favour of or against the subjective good faith of the relocating guardian. An unreasonable move suggests the relocating guardian is not acting in good faith.
Hadjioannou v. Hadjioannou, 2013 BCSC 1682 (CanLII): there was order prohibiting the relocation of children to Alberta from Metro Vancouver after a determination it was not in the children’s best interests for such a move to be permitted and a determination there was a lack of good faith for the move.
McKenzie v. Perestrelo, 2013 BCSC 1452 (CanLII): one parent resided in Smithers and one parents in Fort St. John, the court ordered that the father have 8 days for parenting time with the exchange to occur in Prince George.
T.C. v. S.C., 2013 BCPC 217 (CanLII): mother was allowed to move from Port Coquitlam to Bellingham, Washington with specified parenting time to the father.
P.V.P. v. E.P., 2013 BCPC 377 (CanLII): although the mother satisfied the good faith requirement, she was unable to persuade the court a move from Surrey to Calgary was in the children’s best interests and the relocation under the Family Law Act was denied.
H.D.M. v. S.W.T., 2013 BCSC 1863 (CanLII): mother sought an order to relocate with a child from Vernon to New Westminster, although the reason for relocation was developed in good faith, it was not in the child’s best interest to allow the relocation under the Family law Act.
L.K. v. M.M., 2013 BCPC 225 (CanLII): mother moved from Trail to Castlegar, BC, prior to the court application dealing with the relocation argument; the court was not completely convinced there was a good faith basis for the move but in any event found it was not in the child’s best interest to allow such a relocation under the Family Law Act.
S.B. v. N.L., 2013 BCPC 233 (CanLII): father filed an objection 59 days after been given formal notice of a relocation from Quesnel to Prince George by the mother; the issue was whether or not the father received formal notice of the relocation; the mother sent a notice by regular post, father says he never received the letter, the court concluded absent evidence (ie affidavit of service) of the delivery of the latter setting out the relocation notice, the court was at liberty to engage in a full analysis of the proposed relocation. The proposed relocation was made in good faith and the father failed to establish that it was not in the children’s best interests to move to Prince George.
K.L.G. v. D.J.T., 2013 BCSC 1684 (CanLII): the mother sought an order to relocate the children from Chilliwack to K. (Ontario?) and was successful after satisfying the court such a move was made in good faith and it was in the children’s best interests.
S.L.S. v. J.A.S., 2013 BCSC 1775 (CanLII): the mother sought an order to relocate the children from Peachland to Pitt Meadows in the face of a shared parenting regime; the mother sought the relocation order to pursue more stable employment; although the mother satisfied the good faith requirement for the relocation, the court concluded that it would not be in the child’s best interests allow a relocation of the child from Peachland to Pitt Meadows under the Family Law Act.
S.J.F. v. R.M.N., 2013 BCSC 1812 (CanLII): the issue was a relocation from Smithers to Prince George, BC; the child was born after a brief relationship; the father sought an order prohibiting the relocation sought by the mother; the mother’s evidence as to good faith was accepted and the court concluded that the relocation was in the child’s best interests.
A.J.D. v. E.A.E., 2013 BCSC 2160 (CanLII): the mother sought a relocation order for one year to study French in Moncton, New Brunswick from North Vancouver as part of her civil service training; just because a parent has not established a good faith basis for a relocation does not preclude a court from concluding a relocation is in the child’s best interests in any event (paras. 36-37 and 47); the court in this case found that the proposed relocation was not made in good faith and that it was not in the children’s best interests to be moved mid semester from North Vancouver to Moncton, New Brunswick.
N.A.F. v. C.D.M., 2013 BCSC 2294 (CanLII): the mother failed to give proper notice of a relocation of the children from Squamish to Kelowna to the father; the court concluded, on the evidence, that the relocation was solely for the mother’s benefit and not in the children’s best interests ordered the children back to Squamish on an interim basis pending a full hearing on the issue of custody. The court concluded that the basis for the relocation on the basis of family violence could have been dealt with by way of a protection order.
M.M. v. C.J., 2014 BCSC 6 (CanLII): the claimant mother sought to relocate the child of the marriage from Maple Ridge to Airdrie, Alberta; after concluding that the proposed relocation was made in good faith, the court concluded that it was in the child’s best interests to allow the relocation a sought by the mother.
R.C.G. v. G.B.B., 2014 BCSC 178 (CanLII): the claimant mother sought to relocate the children from Kelowna to Denman Island; the court did not make a determination as to the good faith component and concluded that it was not in the children’s best interest to relocate from Kelowna to Denman Island.
H.N.M. v. S.C.J.K., 2014 BCSC 231 (CanLII): the mother was ordered to relocate the child from Kelowna to Chetwynd, BC because, in part, the mother could earn more in Chetwynd.
S.N. v. E.C., 2014 BCPC 82 (CanLII): the claimant mother sought the relocation of the children from Tofino to Pentiction, BC; the court concluded that the mother made out the good faith component (income opportunities and reduction in cost of living expenses) and concluded that it was in the children’s best interest to allow the relocation. The father was behind in child maintenance and sporadic in such payments.
M.T. v. R.A., 2014 BCSC 795 (CanLII): the claimant mother sought to relocate from Vancouver to Victoria, BC for economic reasons and obtain less expensive housing, in part; the court stated at para. 21 that not all cases of mobility or relocation are fit for a full-blown trial and there is no presumption to that effect. In other words, a summary trial on affidavit evidence is permissible.
McCaw v. Hawkey, 2014 BCSC 765 (CanLII): the court stated the following at paragraph 15 with regard to arguments about classifying a move within Metro Vancouver as a relocation:
[15] The parties presently live a matter of minutes from each other, but the travel arrangements might be rendered somewhat more difficult in the event that the claimant is allowed to move to the Tri-Cities area as she hopes. On this latter point, Master MacNaughton in the case of Berry v. Berry, 2013 BCSC 1095 (CanLII), 2013 BCSC 1095, dealt with a proposed move from Surrey to the North Shore of the Lower Mainland. She reached the conclusion that the mother’s proposed move, in that case, was not a “relocation” under either the provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). With respect to the application of the provisions of the Family Law Act, S.B.C. 2011, c. 25 Master MacNaughton said as follows at para. 32 of her decision:
The test in ss. 46 and 65 the FLA is child-centred. If focuses on children’s relationships and the impact of a change in residence on those relationships. To qualify as a relocation, the impact must be significant. The use of the qualification “significant”, acknowledges that there will be some impact from a move but limits the courts involvement to those moves which will have a significant impact on relationships. The focus is on the best interests of the children.
[16] Similarly, I am not satisfied that the proposed move will have a “significant” impact on these children. They are both pre-schoolers and a move will impact their social interactions somewhat. There is nothing in the materials to suggest to me that a move to a new residence a few miles away will have any lasting negative effect. On the other hand, I know nothing of the situation in the Tri-Cities to which the children may be moving and I am not at liberty to sanction a move at this point. Neither, however, am I prepared to prohibit her from moving. It seems to me that what is proposed is simply the sort of move that often takes place in the aftermath of a matrimonial breakdown, and unless good reason can be shown to the Court why it should be prohibited, it should not be restrained.
C.M.B. v. B.D.G., 2014 BCSC 780 (CanLII): this case involved an appeal from a Provincial Court of BC decision denying a relocation application by the mother; once again the Supreme Court of BC at paras. 78 and 148 states absent a good faith claim been made out or the absence of a reasonable and workable arrangement , the court is still required under section 69(4) of the Family Law Act to assess whether a relocation is in the child’s best interests as the “best interests” test is a stand alone criteria for a proposed relocation under the Family Law Act.
L.S. v. R.S., 2014 BCSC 1213 (CanLII): the claimant mother sought an order allowing the children to relocate to London, England from Vernon, BC; an application under both the Divorce Act and the Family Law Act must be decided pursuant to the Divorce Act based upon the doctrine of paramountcy; the court cited the leading mobility case of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27; the court concluded that it was not in the children’s best interests to relocate to London, England.