Relocation or Mobility cases

Relocation or “mobility rights” cases

Sections 65 through 71 deals with the relocation of a child from outside the jurisdiction of the Province of British Columbia.

The Ministry of Justice comments about Division 6 – Relocation as follows:

Explanation from the Ministry of Justice

This Division addresses the issue of moving away after parenting arrangements have been established in an agreement or court order. Relocation is an increasingly common event in children’s lives after their parents separate or divorce, and disputes over relocation are difficult to resolve and tend to result in litigation.

Most often, this situation arises where one parent wishes to move to another city, province or country with the child. This move could impact the relationship between the child and the other parent and will require a change in the parenting arrangements. As a result, often the other parent does not agree with the move.

The Family Relations Act did not specifically address relocation, and the case law is unclear. Critics have called relocation law “rock, paper, scissors territory” and say that its uncertainty and unpredictability fuel litigation, prolong disputes, and interfere with parents’ ability to plan.

There is a difference between how guardians are treated under this Division and how persons with contact with the child are treated. 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 to ensure there is adequate opportunity to make appropriate contact arrangements.

The Division’s goal is to introduce some certainty to this area of the law by mandating notice of a proposed move, defining what constitutes a relocation and directing courts about both circumstances that should be considered and those that should not. The introduction of certainty will reduce the need for lengthy litigation and, thus, reduce the costs associated with disputes over relocation.

Definition and application

65 (1) In this Division, “relocation” means a change in the location of the residence of a child or child’s guardian that can reasonably be expected to have a significant impact on the child’s relationship with

(a) a guardian, or

(b) one or more other persons having a significant role in the child’s life.

(2) This Division applies if

(a) a child’s guardian plans to relocate himself or herself or the child, or both, and

(b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child.

Explanation from the Ministry of Justice

Section 65 establishes criteria for what is considered to be a “relocation”. “Relocation” is defined in a child-centred way that takes into account the specific circumstances of individual families. It focuses on the impact of the proposed move on the child’s primary relationships.

Usually relocation disputes arise where a guardian wants to move with the child. However, relocation includes situations in which a guardian intends to move but does not intend to move the child. Although these types of cases are often less disputed than cases where the guardian intends to move with the child, this provision ensures that notice is given so that appropriate adjustments to parenting arrangements may be made to minimize the impact on the child.

This section also makes clear that Division 6 applies only when parenting arrangements already exist. If parenting arrangements do not already exist, then parents must make an application to determine parenting arrangements

Commentary

Division 6, which addresses relocation, deals with situations where a guardian is seeking to move after parenting arrangements have been put in place either by agreement or order. Mobility cases are difficult to resolve and often result in litigation. The provisions of Division 6 are intended to introduce more certainty to this area of the law by mandating notice of a proposed move, defining what constitutes a relocation and providing directions about both circumstances that should be considered and those that should not if an application is made. It is hoped that these provisions will reduce the need for litigation; however, the all-or-nothing remedies sought in these types of matters may prevent this from coming to fruition.

Notice of relocation

66 (1) Subject to subsection (2), a child’s guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days’ written notice of

(a) the date of the relocation, and

(b) the name of the proposed location.

(2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied that

(a) notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or

(b) there is no ongoing relationship between the child and the other guardian or the person having contact with the child.

(3) An application for an exemption under subsection (2) may be made in the absence of any other party.

Explanation from the Ministry of Justice

Section 66 describes the circumstances in which notice of a proposed relocation must be given, and to whom.

This section requires a guardian of a child who plans to relocate, with or without the child, 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.

The notice period allows for an opportunity to discuss the issue and, if a relocation is agreed on, to work out new parenting arrangements.

The section allows a court to grant an exemption to the requirement to give notice if satisfied that either:

the existence of family violence would create a risk if notice were given; or

there is no ongoing relationship between the child and the person who would be entitled to notice.

Commentary

If a parent objects to the move, that parent must, under s. 68, file an application within 30 days for an order prohibiting the relocation, failing which the relocation may proceed. The exception to the requirement to provide notice is where there is a risk of family violence or where there is no ongoing relationship between the child and the guardian or the person authorized to have contact.

The notice period provides the parties the opportunity to discuss the move and, if the relocation is agreed on, the ability to work out new parenting arrangements. Hopefully the existence of this provision will greatly decrease the number of individuals who move with a child without providing notice in an attempt to prevent being stopped by an opposing party.

Resolving issues arising from relocation

67 (1) If notice is required under section 66 [notice of relocation], after the notice is given and before the date of the relocation, the child’s guardians and the persons having contact with the child must use their best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation.

(2) Nothing in subsection (1) prevents

(a) a guardian from making an application under section 69 [orders respecting relocation], or

(b) a person having contact with the child from making an application under section 59 [orders respecting contact] or 60 [changing, suspending or terminating orders respecting contact], as applicable, for the purpose of maintaining the relationship between the child and a person having contact with the child if relocation occurs.

Explanation from the Ministry of Justice

Section 67 encourages co-operation 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 goal is to reduce the need for litigation and, thus, reduce the costs associated with disputes over relocation.

This section makes it clear that the obligation to attempt to resolve the dispute does not prevent the starting of an application for an order if that is necessary. If the parties resolve the issue before the court hearing, they do not need to continue in court.

Only guardians can ask the court to prevent a move. A person with contact must be given notice of a move, but this is to ensure they can make alternate arrangements for that contact.

Commentary

The object of specifying that the parties must use best efforts to resolve the issue is to reduce the need for litigation as historically mobility cases were difficult to resolve given the all-or-nothing nature of relocation. However, it is explicit in the section that the obligation to attempt to resolve the dispute does not prevent the starting of an application, if necessary. If the parties are able to resolve the issue prior to a hearing the litigation need not continue.

The section distinguishes between guardians and persons having contact. Only guardians can ask the court to prevent a move under s. 69. A person with contact must be given notice, but this is only to ensure they can make alternate arrangements for contact, although they are at liberty to make a variation application. This is one of the differences between guardians and individuals with contact that may cause the majority of parties in a family matter to seek guardianship and not settle for contact.

Child may be relocated unless guardian objects

68 If a child’s guardian gives notice under section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation.

Explanation from the Ministry of Justice

Section 68 allows a move to occur unless an application is filed objecting to the move within 30 days after notice is given.

This eliminates the need for a moving guardian to wait the entire 60 days before planning the move if another guardian does not object to the move, by requiring the other guardian to raise their objection within 30 days. The parties would then have some time to resolve the dispute before the intended move date.

This section balances the needs of an objecting guardian to have sufficient time to object and the needs of the moving guardian to make plans for the move.

Orders respecting relocation

69 (1) In this section, “relocating guardian” means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (a) of this section.

(4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,

(a) the relocating guardian must satisfy the court that

(i) the proposed relocation is made in good faith, and

(ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child’s other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child’s life, and

(b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court

(a) of the factors described in subsection (4) (a), and

(b) that the relocation is in the best interests of the child.

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:

(a) the reasons for the proposed relocation;

(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;

(d) any restrictions on relocation contained in a written agreement or an order.

(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child’s relocation were not permitted.

Explanation from the Ministry of Justice

Section 69 provides guidance to the court with regard to determining whether relocation should be granted or prohibited and introduces a degree of certainty into the law.

This section provides the factors that a court must consider when determining whether to grant a relocation. The court must consider the factors listed in the general best interests of the child test in s. 37 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.

It deals with situations in which the guardians of a child do not have substantially equal parenting time. The moving guardian, who has the majority of the time with and care of the child, must show “good faith” reasons for the move and must provide reasonable and workable alternate parenting arrangements that will maintain the relationship between the child and other guardian. If the court is satisfied that those two things are established then there is a presumption in favour of the move, unless the objecting guardian satisfies the court that the move is not in the best interests of the child.

The section also deals with situations in which the guardians have substantially equal parenting time. In such a case, both parents play a significant role in the child’s day-to-day life and it may be difficult to maintain this relationship if there were a move. Therefore, the threshold is higher and the moving guardian has full responsibility for satisfying the court that the proposal to move is made in “good faith,” reasonable and workable alternate parenting arrangements have been proposed, and the move is in the best interests of the child.

This section gives the court guidance about what to consider in determining whether the proposal to move is made in “good faith”, including the reasons for the move, whether the move is likely to enhance the general quality of life of the child and moving guardian, whether notice requirements were met, and whether the guardians’ written agreement or order restricts relocation. The good faith requirement is designed to prevent relocations from occurring where the moving guardian is trying to move in order to undermine or limit the child’s relationship with the other guardian.

It prohibits a court from inquiring into and considering whether a guardian would still relocate if the application to relocate the child were refused. This question is an impossible one for a guardian to answer, with very little probative value for the decision the court has to make.

Commentary

Good faith is measured in relation to reasons for the move and whether the move will enhance the quality of life of guardian or child. The court will also consider any provisions of a written agreement relating to relocation. Where these factors are established, the move is presumed to be in the best interests of the child unless the guardian seeking to prohibit the move establishes otherwise. The good faith provision is included in an effort to prevent relocation from occurring where the underlying reason is to undermine or limit the child’s relationship with the other guardian. The court is also prohibited from inquiring into and considering whether a guardian would still relocate if the application to relocate the child were refused. This was addressed in the common law and is generally considered to be an impossible question to answer with little probative value.

If relocation permitted

70 (1) If the court makes an order under section 69 [orders respecting relocation] that permits a child’s relocation, the court may make any of the following orders:

(a) subject to subsection (2) of this section, if the order made under section 69 affects an agreement or order that allocates parenting arrangements between the relocating guardian and another guardian, an order under section 45 [orders respecting parenting arrangements] or 47 [changing, suspending or terminating orders respecting parenting arrangements], as applicable;

(b) any order necessary to ensure that the relocating guardian complies with the terms of the order permitting relocation, including an order to do one or more of the following:

(i) give security in any form the court directs;

(ii) transfer specific property to a trustee named by the court.

(2) In making an order under subsection (1), the court must seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order.

Explanation from the Ministry of Justice

Section 70 authorizes the court to make necessary changes to the parenting arrangements to facilitate a relocation and to make orders to ensure compliance with a relocation order. Compliance is especially important in these cases, because otherwise the move could undermine the relationship between the child and the non-moving guardian.

This section restricts the court’s discretion to make fundamental changes to the parenting arrangements by requiring that the existing arrangements be preserved to the extent reasonable.

Restricting the discretion that courts may exercise in adjusting existing parenting arrangements prevents a re-examination of the entire parenting arrangement structure. The existing parenting arrangements were either the result of an agreement between the guardians or a court order made in the child’s best interests. While the physical relocation of the child or one of the guardians will necessitate changes, the court must try to adjust the arrangements in such a way as to preserve the current roles played by the guardians.

Commentary

When an order for relocation is made, the court may make or vary the existing order for parenting arrangements with the object of preserving, to the extent possible, the parenting arrangements and roles played by the guardians under the original agreement or order. This is imperative as the relocation has the potential of undermining the relationship between the child and the non-moving guardian and prevents a re-examination of the entire parenting arrangement.

The court can also make orders to ensure compliance with a relocation order.

Not a change in circumstances

71 The fact that an order is made that prohibits a child’s relocation is not, in itself, a change in the child’s circumstances for the purposes of section 47 [changing, suspending or terminating orders respecting parenting arrangements].

Explanation from the Ministry of Justice

Section 71 prevents an application to change parenting arrangements based only on the fact that a court refused to allow a guardian to change the location of a child.

Section 47 of the FLA requires a change in circumstance before a change to an order respecting parenting arrangements is made. While an unsuccessful application to move coupled with other questionable decisions by a guardian may justify a change in parenting arrangements based on the best interests of the child, an unsuccessful proposal to move on its own is insufficient justification for such a change.

This section is important because, otherwise, a relocating guardian may forego a relocation where it would be in the child’s best interests because of fear an unsuccessful application could result in a significant change to the parenting arrangements. There have been challenging cases where a parent applied for permission to move the child, only to have the court reject the move and then transfer custody to the other parent without further basis for the decision. This section provides clarity and ensures that when a relocation is denied, the status quo is maintained with respect to the parenting arrangements unless there is another change of circumstances.