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Mobility Law Update

The BC Court of Appeal recently released a decision which clarifies the decision making process the Court will use where one parent wants to move to another city, province, or country with the children and the other parent wants to stay where they are living and keep the children.   The test in these situations is what is in the "best interests" of the children. In S.S.L. v. J.W.W., 2010 BCCA 55, an appeal from S.S.L. v. J.W.W., 2009 BCSC 924, the Court of Appeal said the Judges should consider four possible scenarios and then decide which one will be in the best interests of the children.  The four possible scenarios are:

  1. One parent moves with the children and the other parent stays behind;
  2. One parent moves and the children stay behind with the other parent;
  3. Both parents stay behind with the children;
  4. Both parents move with the children.

    Where the Judge is unable to decide between options 1 and 2, the Judge will then proceed to choose between options 3 and 4.  Until this Court of Appeal case, scenario 4 was not typically considered, and it has only been somewhat recently that BC Courts began considering scenario 3. The Court doesn't actually have the authority to force you to move or not to move.  The practical effect of this decision is that the Court may make decisions about whether a move is in the best interests of the children while assuming under scenario 3 or scenario 4 that both parents will live in the same city in the future, whether or not that is actually the case.

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