These are just a few of the circumstances in which a person's time with the child can be increased from the amount given in an order or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.
==Relocating with or without a child==
Mobility is a fact of life in Canada. A parent who wants to move must have the other parent's consent or a court order. Generally, the reasons for moving include:
*there is an employment opportunity,
*the parent is in a new relationship with someone from out of town,
*the parent wants to be closer to family,
*there is a unique educational opportunity for either the parent or the children, or
*there is a unique medical or therapeutic opportunity for either the parent or the children.
Normally, the other parent doesn't want the children to move since a move could hamper that parent's ability to see the children as frequently and could harm the child's relationship with that parent. This is especially true when a parent seeks to move to another province or another country. Even within British Columbia, a relatively short move from Richmond to Chilliwack, for example, can impair a parent's schedule and relationship with their child.
These problems, which used to be called ''mobility issues'', are handled under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' in different ways.
===The ''Divorce Act'' and ''Gordon v. Goertz''===
Relocation under the ''[[Divorce Act]]'' is about applying to vary an order for custody or access. Inevitably, a move of even only a few hours away can make it impossible for a spouse to have access to a child. In order for the spouse who is moving to avoid being in breach of an order for custody or access, the spouse will need to apply to the court for an order adjusting the arrangements for custody and access to allow the move. The most important case on this issue is ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', discussed above. The reasoning from that case is roughly this:
*The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
*If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of the each parent to satisfy the child's needs.
*This assessment is based on the findings of the judge who made the previous order and the new circumstances.
*The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that parent's views are entitled to great respect.
*The focus is on the best interests of the child, not the interests, rights, and entitlements of the parents.
It is always very difficult to say whether the court will allow a parent to move with the children or not. The case law following ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' is quite contradictory and the best that can usually be said, apart from pointing out some general principles, is that a parent with the children's primary residence has almost a 60% chance of being allowed to do so. In 2011, Professor Rollie Thompson of the law school at Dalhousie University gave a presentation to local lawyers updating the case law on mobility issues in BC. His findings were also [https://perma.cc/7DPT-6P5V published]. What he learned was this:
*The parent with primary care is able to move about 50% of the time in Canadian cases these days, down from 60%. Moves are permitted about 57% of the time in BC.
*Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision.
*Moves were refused in eight of nine cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases.
*Moves were allowed three-quarters of the time when the children were aged 0 to five, declining to about half the time for children aged six and older.
*Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.
The tough part about all of this is that it's all fine and dandy to know what happens to people on a ''statistical'' basis, but statistics don't tell you anything about what is going to happen if ''you'' want to move! However, some of the circumstances that courts have found to favour or reject a proposed move are these:
{| class = wikitable
! Factors in Favour
! Factors Against
|-
|
*The spouse seeking the move has better job prospects or a guaranteed job at the proposed destination.
*The spouse has a support network of family and friends at the new home.
*There is some benefit at the new home not available at the old home, like better schools or medical programs.
*The spouses have resources available to them that will allow the other spouse to visit the children frequently, like a lot of money or being an employee of an airline.
*The children aren't particularly close to or have no relationship with the spouse who will be staying behind.
|
*The children have lived in their present setting for a significant amount of time and have established roots in their community.
*The move will damage or terminate the other spouse's relationship with the children.
*The move is motivated by a wish to alienate the children from the other spouse.
*The parent seeking the move has no particular ties to the destination, or the move is proposed solely for that spouse to be in a new relationship.
*There is no way to balance the effect of the move with more extended time with the other spouse, such as extended summer access, or access over the whole of the winter holiday.
|}
It is almost impossible to predict the result of an application to move under ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]''. Because relocation issues are among the most hotly argued and difficult issues there are in family law, the assistance of a lawyer is highly recommended.
<span style="color:#D2691E">'''Important changes'''</span> <br />
The ''Divorce Act'' now also provides a test to help judges decide what should happen when a spouse wants to move away from the other spouse after separation. Although the ''Divorce Act'' test is similar to the ''Family Law Act'' test, they are not exactly the same. It is a good idea to speak to a lawyer whenever someone wants to move away after separation.
===The rules under the ''Family Law Act''===
The situation is much different under the ''[[Family Law Act]]''. One of the most important changes this law has introduced are new legal obligations for guardians who are planning on relocating. There are different processes depending on whether there is a court order or agreement in place with respect to parenting arrangements.
Where there is no court order or agreement with respect to parenting arrangements in place, section 46 of the ''Family Law Act'' applies. Here is how that process works:
Changing a child's residence can significantly impact the child's relationship with another guardian. When the potential for impact is reasonable to expect, the person wanting to change the child's residence must apply to court under section 45 of the ''Family Law Act'' for an order respecting parenting time.
Section 46(2) of the ''Family Law Act'' sets out the test to determine whether there can be changes to a child’s residence:
<blockquote><tt>To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court</tt></blockquote>
<blockquote><blockquote><tt>(a) must consider, in addition to the factors set out in section 37 (2) ''[best interests of child]'', the reasons for the change in the location of the child's residence, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) must not consider whether the guardian who is planning to move would do so without the child.</tt></blockquote></blockquote>
Where the parties have an existing order or agreement with respect to parenting arrangements, the ''Family Law Act'' sets out two new tests to determine whether a guardian will be permitted to relocate if another guardian objects.
Here's how that process works:.
First, under section 66, a guardian who plans a move, with or without the child, that will have a significant impact on the child's relationship with a guardian or other people with a significant role in the child's life must give written notice of the proposed move at least 60 days before the move, to all other ''guardians'' and ''persons with contact'' with the child. (The guardian who is moving can apply to court for an exception to this requirement.) The notice must state the place the guardian plans on moving to and the date of the move. This requirement applies whether a guardian is planning on moving with a child or by themselves.
Second, under section 68, a guardian who objects to the proposed move must file an application in court to stop the move within 30 days of getting written notice of the move. The parties are required to try to resolve any disagreement about the move on their own, but this doesn't prevent a guardian from applying to stop the move. Only guardians can object; people with contact cannot. However, people with contact can make an application under section 59 of the ''Family Law Act'' or section 60 of the ''Family Law Act'' to seek an order or to change an existing order for contact, for the purpose of maintaining the relationship between the child and a person having contact with the child if the relocation occurs.
Third, if the parties can't resolve their differences about the move, then either guardian can apply to court for orders allowing or preventing the proposed move. There are different tests that the court will apply depending on whether the guardians have "substantially equal parenting time." The ''moving guardian'' must prove, under section 69(4) that:
*they have proposed to move ''in good faith,'' and
*they have proposed ''reasonable and workable'' arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life.
If the guardian who is moving can do this, the move is presumed to be in the child's best interests unless the guardian who is objecting to the move can convince the court otherwise.
The test is a bit different if the moving guardian and the objecting guardian share the child's time equally or almost equally. In that <span class="noglossary">case</span>, the moving guardian must prove, under section 69(5) that:
*they have proposed to move "in good faith,"
*they have proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life, and
*the move is in the child's best interests.
The meaning of ''good faith'' is discussed at section 69(6):
<blockquote><tt>For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the reasons for the proposed relocation;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) whether notice was given under section 66;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) any restrictions on relocation contained in a written agreement or an order.</tt></blockquote></blockquote>
If the move is allowed, the objecting guardian may ask the court to vary the old arrangements for parenting time and, under section 70(2), the court is required to "seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order."
==Resources and links==