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Should I stay or can I go now? An update on parental mobility

Written by: HHLaw (View All Posts ) Published: January 23, 2017
Categorized: British Columbia, Case Analysis, Mobility.

What happens when a divorced parent wants to move with their child?

This is one of the hardest questions in family law. As with all court decisions about parenting, judges are supposed to make an order that reflects the best interests of the child, unfortunately, in the context of a parent moving away, that is not a lot of guidance to go on.

In 1996 the Supreme Court of Canada decided Gordon v. Goertz, [1996] 2 SCR 27. In that case, the Supreme Court weighed whether a mother who had custody could take her child to Australia, or if custody should be awarded to the father who was staying behind. Although they were not explicit that this was the correct approach, the Supreme Court of Canada only considered two scenarios, go with mom or stay with dad.

The “third” option

The trouble with the approach in Gordon v. Goertz is that one parent’s relationship with their child is going to be seriously diminished in either of these two scenarios. In the years that followed, some judges came up with a “third option,” they started ordering that the parent who wanted to move had to stay. Sometimes they did this explicitly, sometimes they guessed that if the child did not go, the parent would not go either. This third option of having everyone stay was an attractive solution, especially since the assumption that the moving parent would not go without their children was usually right. However, when these cases went to the Courts of Appeal, the usual ruling was that judges were not supposed to make the decision that way. BC’s court of appeal came to this conclusion in Falvai v. Falvai, 2008 BCCA 503.  Alberta said not to do it in MacPhail v. Karasek, 2006 ABCA 238. Despite these decisions at the Appeal level, many trial Court decisions continued to use this third option.

The BC Court of Appeal then changed things in 2010, where they said in S.S.L. v. J.W.W., 2010 BCCA 55 that if there was no way to decide between moving with one parent and staying with the other, the court could then consider two other scenarios, both parents staying in the same place, and both parents moving. This legitimized ordering everyone to stay in the same place as a “solution”, which has made it a very likely outcome in mobility proceedings.

The way these cases are decided became such a problem that in 2012, in the case of R.E.Q. v. G.J.K., 2012 BCCA 146, the BC Court of Appeal challenged the Supreme Court of Canada to sort things out, they said:

“It may, with deference, be time for the Supreme Court of Canada to reconsider whether cases of this kind are to be determined with reference only to the children’s best interests or whether what I suggest is an unspoken factor in mobility cases ‒ the “mobility rights” of custodial parents ‒ are also a proper consideration. It is not for me to suggest that such rights should or should not be considered; but if they are, it seems to me that Canadian courts require guidance as to how such rights, if rights they be, are to be weighed against other factors relating to children’s best interests.”

The Supreme Court of Canada has not yet accepted this challenge.

The impact of BC’s Family Law Act on mobility

Making matters more confusing was that the Family Law Act, which became law in BC in 2013, has separate provisions for mobility and treats the issue differently. Whether you can move with your child is different if you were once married then if you were not. However, as the cases have begun to trickle in under the Family Law Act, the decisions are going in the same direction.  In a significant majority of cases, the courts are finding that the best interests of the child would be for no one to move.

The cases in the past few years have reinforced that it is hard to obtain an order allowing you to relocate your child. The reality is that there is an unknown components to moves, while there is known component to everyone staying, which courts have found attractive.

However, every case turns on its specific facts so consult a lawyer if you are considering a move, but bear in mind that currently it appears granting approval for relocation is the exception rather than the rule.

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