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Mobility in Family Law Part 2

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.  This is the second part of our three part series explaining the law when one parent wants to move and the other wants to stay.  The first part is available here. We previously discussed the different standards and different laws applied in determining mobility.  Next we are going to look at exactly how the Court approaches the question of what is in the best interests of the Child.  The Supreme Court of Canada case Gordon v. Goertz, [1996] 2 SCR 27 sets out the relevant factors that the court should consider for married couples.  They are as follows:

  1. the existing custody arrangement and relationship between the child and the custodial parent;
  2. the existing access arrangement and the relationship between the child and the access parent;
  3. the desirability of maximizing contact between the child and both parents;
  4. the views of the child;
  5. the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
  6. disruption to the child of a change in custody;
  7. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

For unmarried parties the factors are a little different and are set out in the Family Law Act.  The relevant factors for unmarried parties are:

  1. the child's health and emotional well-being;
  2. the child's views, unless it would be inappropriate to consider them;
  3. the nature and strength of the relationships between the child and significant persons in the child's life; the history of the child's care;
  4. the child's need for stability, given the child's age and stage of development;
  5. the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
  6. the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
  7. whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
  8. the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
  9. any civil or criminal proceeding relevant to the child's safety, security or well-being.

While these factors are a little bit different, in practical application they are very similar and will generally lead to the same results.

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