With our increasingly mobile society the number of parental relocation cases continues unabated. In British Columbia the provincial legislators have done much to remove the mystery of the relevant considerations on parental and child mobility cases with the introduction of Division 2 and Division 6 of Part 4 of the Family Law Act.
In KW v LH 2018 BCCA 204 the Court of Appeal considered which sections of the legislation were applicable where there was a previous order regarding parenting. The Family Law Act states that where there is no order or agreement section 46 applies and where there is an order or agreement section 65 applies.
The issue raised by the appellant mother, whose application to relocate with her 6-year-old son from BC to Nova Scotia was dismissed, was whether section 46 applied in circumstances where there is no order, interim or otherwise at the commencement of the proceeding, but before trial such an interim order is made. This issue had not been fully resolved by previous conflicting authorities.
In the court below the judge applied the provisions of Division 6 (section 65) which the appellant argued constituted a reversible error of law.
The facts revealed that in June 2015 the children’s mother filed a Notice of Family Claim. The parties attended a JCC where a consent order was made for a section 211 report, and in November 2015 mother served written notice on her husband that she wished to relocate with the children to Nova Scotia. The husband indicated he would challenge the move and both parties delivered several other related applications, including for child support, parenting orders and other related matters.
In January 2016 an order was made for parenting for the husband and an interim order barring either party from relocating with the children was made. Months later the mother amended her Notice of Family Claim to include a relocation order. In her amended Claim she abandoned a claim for an interest in the family home and spousal support.
The trial commenced in March 2017 and ran for 14 days with 18 witnesses. The section 211 report author testified that a move to Nova Scotia was not in the children’s best interests. Written closing submissions were in excess of 300 pages.
In light of the previous interim parenting orders, the trial judge held that sections 65 and 69 of the Family Law Act applied. The trial judge also found that the mother’s wish to relocate was based on her desire to be closer to her family and farther from her husband. The judge accepted the opinion of the child custody expert and declined to grant the relocation order sought by the mother. He stated:
“In my opinion the determining date on which the court is to consider if an agreement or order exists respecting parenting arrangements is the date when the application to relocate is heard. An agreement or order respecting parenting arrangements gives guardians legitimate expectations about those arrangements which the courts will enforce in appropriate circumstances. Those legitimate expectations include the obligation found in Division 6 to persuade the court that a relocating guardian is acting in good faith.
I conclude that Division 6 of the FLA governs the [Mother’s] application to relocate.”
The appeal court considered a number of lower court decisions on the issue of whether an interim parenting order brings a relocation case into section 65 of the Family Law Act and held that it did not.
“Absent an existing agreement between the parties, when an initial application is brought for an order respecting parenting arrangements under s. 45 and a guardian indicates in his or her pleadings or by notice in writing of an intention to change the child’s residence, s. 46 applies notwithstanding that an interim order is made in the course of the proceedings. To the extent that many cases suggest otherwise, those cases were wrongly decided and should not be followed.”
The appeal court considered whether they would remit the matter back to the trial court and decided not to do so. Based on the trial judge’s finding of facts, with the exception of the finding that the mother’s move was motivated by a desire to distance herself from his child’s father, which the appeal court said was contrary to the evidence at trial, the court allowed the mother to relocate to Nova Scotia. The court urged the parties to work out a parenting schedule for the father, depending on whether he remained in BC or moved to Nova Scotia.
Lawdiva Court aka Georgialee Lang