“Go West or East or….” Divorce and Relocation When Children are Involved.

Relocation

Allen and Beth are divorced. They have remained friends and are jointly raising their child, Caroline, in British Columbia. Beth is interning as a journalist. She is not making very much money and is finding it difficult to make ends meet. Allen is living with his new partner, Diamond. Under their parenting agreement, Allen and Beth both enjoy shared guardianship of Caroline.

Recently, Beth responded to a job posting in Alberta. To her surprise, she is offered a position as a reporter. The new job pays much more than what she is currently making. It also offers a major step forward in her new career. Better yet, Beth’s mother, Ellen, is living in Alberta and would be able to take a more active role in Caroline’s life. Ellen is absolutely elated to spend more time with her daughter and granddaughter.

Beth wants to take the job, but she does not know what will happen if she moves. Will she be able to take Caroline with her? Does she need to tell Allen? When does she need to tell him? And what if he will not let Caroline move with her?

The Law on Relocation

Moving and relocating following a divorce or separation is not unusual. Opportunities and career changes pull us in different directions. Sometimes we are forced to make a move, and sometimes we have a choice. A move affects several individuals, most importantly, your children.

Consequently, British Columbia’s Family Law Act (FLA) has tried to clarify the law on what happens when a parent wants to move or “relocate” with a child of the union. If there is no written agreement or order concerning parenting arrangements then Part 4, Division 1 of the FLA is used to manage relocation disputes. If there is a written agreement or a court order concerning parenting arrangements, then Part 4, Division 6 is applicable.

Relocation When There is no Court Order

It is easier to relocate if there is no court order. The FLA imposes several procedural requirements on parents that have a court order or written agreement respecting parenting arrangements, such as informing the other parent of your intention to move well before the relocation occurs. These requirements do not exist if there is no court order or other agreement in place.

Nonetheless, in either case, the change in residential location of the children must be shown to have some significance in terms of altering the parenting arrangements between the parents. In other words, a move down the street is probably not significant (depending on how long the street is); however, if the move might completely alter the child’s relationship with the other parent, such as a move to another province, provisions in the FLA become applicable.

Beth and Allen have a parenting agreement which grants each of them shared guardianship of Caroline. Thus, if Beth wanted to move to Alberta, with or without Caroline, she would need to comply with Part 4, Division 6.

At a minimum, under the FLA, Beth needs to notify, Allen, of her intention to move and where she intends to move at least 60 days before the planned move. Additionally, she needs to notify “persons having contact with the child”, which, in this case, means Diamond and others.

What if one Parent Objects to Relocation?

If Allen receives notice of Beth’s intention to move, and does not like the idea of Caroline moving away from him, he can take issue with it. The law requires that all parties use their “best efforts” to resolve the dispute. That means that rather than rushing off to court, Allen and Beth are expected to use their best efforts to try and resolve their issue on their own using negotiation, mediation or collaborative law options. Since Beth is the one leaving, as we will see below, she is under a higher obligation to propose workable arrangements. That does not mean that Allen does not have to try and find common ground with Beth. Nonetheless, after receiving notice that Beth plans to relocate a child, Allen has 30 days after receiving the notice to ask a judge to prohibit the relocation.

If Allen does not make his objection known within 30 days of receiving the notice, Beth can relocate with Caroline. If Allen does object, then he files an application to have a judge disallow the relocation.

The Test to Permit Relocation

If the argument over relocation goes to court, the FLA provides a test for judges to use. Since Beth wants to change the terms of the parenting agreement, she needs to establish to the satisfaction of the court that:

  1. Relocation is done in “good faith”;
  2. Beth has proposed reasonable and workable arrangements to preserve the relationship between Caroline and those with a significant role in Caroline’s life; and
  3. That relocating is in the best interests of Caroline

In some circumstances, the test from the Federal Divorce Act is used instead of the FLA. That test is more straightforward, only requiring that the court find what is in the best interests of the child. There is no statutory burden of proof or onus on the parent who wishes to relocate.

Court Battles over Relocation

When one parent wants to move but cannot come to an agreement with the other side, the conflict often ends up in the courts. Litigation can be frustrating, prolonged and expensive. Worse, when courts have to make determinations about what is best for a child, the interpretation of statutes and tests becomes extremely unpredictable.

For example, in D.G.S. v. J.D.S., 2014 BCSC 2183 (CanLII) neither party had legal representation. Mom wanted to take the children from BC to Arizona. Justice Betton found that Mom’s behaviour had been deplorable. She had lied to multiple courts. She had violated the FLA by moving the children without notice. She had not relocated in good faith. She had provided Dad with no workable alternatives. She had violated her separation agreement. She was found to have been actively alienating the children from their father. The judge said he would have no problem refusing the relocation, if it weren’t for Dad’s atrocious relationship with his kids over the course of the children’s lives. Dad did not seem to care about the children until close to the trial. Thus, despite failing the legal test, the judge invoked the court’s inherent powers to determine what was in the best interests of the children, and allowed the relocation.

The relocation case in A.M.D. v. K.R.J., 2015 BCSC 946 (CanLII) took two full days to hear. The parents of a child argued exclusively over where the child would live. Mom wanted to move the child to Alberta. Dad, on the other hand, wanted the child to remain in BC. Justice Sharma used the FLA and considered at some length whether the move was in the best interests of the child. The child was used to spending “a significant part of his week with his father.” Skype and telephone calls were “a weak substitute for a father’s physical presence, affection and parental guidance.” The child’s attachment to BC was strong, since his friends and family lived in the province. The judge concluded by finding that Mom had downplayed Dad’s role in their child’s life and that overall, it was not in the child’s best interests to move to Alberta. The judge did not allow the relocation.

In S.Z. v. D.Z., 2015 BCSC 2157 (CanLII) the parties argued over whether Mom could relocate with three children from Merritt to Kamloops, approximately one hour away. Justice Voith found that the one hour difference would be significant enough to have a serious impact on the children’s relationship with their father, grandparents and friends in Merritt. After focusing on the children’s interests, the Court found that a relocation one hour away would not be in the child’s best interests. Justice Voith did not allow the relocation.

Your Best Option to Deal with Relocation Issues

In all three of the cases above, one parent left the courthouse frustrated and heartbroken. Parents want what is best for their children. In these cases, what is considered “best” can vary greatly between two parents. Ultimately, judges generally end up having to agree with one parent or the other.

You know the facts of your circumstance best, and you deserve the best path forward for yourself and your children. Judges do not know your child, or your former spouse, or the more fulsome background to your parenting agreement. Attempting resolution through mediation, collaborative divorce, or negotiation should be strongly considered before initiating court proceedings. Sometimes it is best to put the facts in front of a judge, but other times it is best to simply talk the matter out.

If you are considering relocation, talk to a member of our Family Law Group at Watson Goepel about the best legal avenue for you and your children.

 

Posted on April 1, 2016 in Relocation

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