Mobility/Relocation – British Columbia enacts Relocation Guidelines
Cases concerning one parent who wishes to move residences with the child are some of the most complex and hard-fought in all of family law. Often, the parent attempting to move has repartnered with someone living elsewhere or has been offered a job they feel would greatly improve their and the child’s life. The parent opposing the move is fighting to maintain consistent contact and proximity to their children. While the case of Gordon v Goertz [1996] 2 SCR 27 (“Gordon”) was meant to provide guidance to the courts in deciding these cases, case law subsequent to Gordon has been extremely fact-specific, which means that in practice, it is incredibly difficult to predict which party will be successful. This unpredictability can amplify disputes and encourage expensive and stressful litigation.
In order to address this issue, British Columbia enacted Relocation Guidelines in Division 6 of their Family Law Act [SBC 2011] Ch.25 (the “Act”). The goal of the guidelines is to “introduce some certainty to this area of the law by mandating notice of a proposed move, defining what constitutes a relocation and directing courts about both circumstances that should be considered and those that should not.”[1] The guidelines even impose a duty on the parties to use their best efforts to resolve any issues arising from a relocation between themselves.
Section 69 “Order respecting relocation” requires the court to canvass each of the “best interests” factors in section 37 of the Act, to specifically consider whether the proposal to move is made in “good faith” and whether reasonable and workable alternate parenting arrangements have been proposed to maintain the relationship between the child and the other parent.
In situations where the guardians of the child do not have substantially equal parenting time and the “primary” parent is able to satisfy the court that the move is in “good faith” and that reasonable and workable alternate parenting arrangements have been proposed, there is a presumption in favour of the move UNLESS the objecting guardian can satisfy the court that the move is not in the best interests of the child.
Where the parents have substantially equal parenting time, there is no presumption in favour of the moving spouse and they must prove that the move is in “good faith”, that reasonable and workable alternate parenting arrangements have been proposed and that the move is in the best interests of the child.
The court is also provided with guidelines as to what to consider in determining whether the proposal to move is in “good faith”, including:
- The reasons for the move;
- Whether the move is likely to enhance the general quality of life of the child and moving guardian;
- Whether notice requirements were met;
- Whether the guardians’ written agreement or order restricts relocation.
The requirement that the court be satisfied that the move is in “good faith” is intended to weed out those applications where the parent attempting to move is doing so to undermine the child’s relationship with the other parent.
Whether these guidelines have increased certainty and/or reduced litigation in this area of law in British Columbia has yet to be seen. Nevertheless, legal scholars and commentators have been recommending the implementation of provincial relocation guidelines for many years and, given their implementation in British Columbia, we may see similar guidelines in Alberta in the future. For a recent case implementing the B.C. guidelines, including a finding that a proposed move was not in “good faith”, see the case of CC v RV 2016 BCPC 477.
[1] British Columbia Family Law Act Section Notes, available at: https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/legislation-policy/fla/part4.pdf