Generally when parents separate, they still want to remain in the same community where they have been living. Sometimes however, for any number of reasons, one of the parents wants to move away. Maybe they have a job opportunity elsewhere, maybe they want to be closer to their family, or perhaps they have a new relationship that motivates them to a new community. Whatever the motivation, the question becomes what happens to the children of the relationship? Joseph Broadhurst of our firm has recently achieved success in both a BC Supreme Court trial (A.B. v. C.D., 2014 BCSC 1081) and an appeal from Provincial Court to BC Supreme Court (C.M.B. v. B.D.G., 2014 BCSC 780) on the issue of mobility, and summarizes some of the considerations in a three part series. In examining the issue of mobility, the first question to tackle is which law applies. In most areas the Divorce Act (Canada) which applies only to married people and the Family Law Act which applies to married and common law spouses are more or less the same. However, when it comes to mobility they are a little bit different. The overarching test applied by both laws is the question "what is in the best interests of the child(ren)." However, the way that the Court goes about answering that question is affected by whether or not the parents are or were married to each other. If a parent is married, then there is no presumption about what is best for the children. If, however, the parent satisfies all the following conditions:
- The parents were never married; and
- There is a written agreement or court order about parenting time; and
- The relocating parent does not have "substantially equal" amounts of parenting time to the other parent (interpret that to mean that if they have substantially more parenting time);
then there is a presumption; namely that the move is presumed to be in the best interests of the child. In that case the parent remaining behind has to demonstrate that the move is not in the best interests of the child. Does it make sense to have this particular exception? In our view it does not. This exception came about as a result of the new Family Law Act seeking to change the law regarding mobility situations, and it technically applies to married parties as well. However, the Divorce Act only applies to married parties and where there is a conflict between the Acts, the Divorce Act is considered "paramount" because it is a federal law and therefore trumps the Family Law Act and governs the issue. More on the practical implications of the mobility test in our next post.