Mobility Cases – B.C.’s Model for Reform
In my other Blog post this week, I outlined a little primer on “mobility”, which involves consideration of when and whether one separated or divorce parent should be able to move with a child so that the other parent’s custody or access rights are potentially affected – for example a move to take a new job or pursue a new relationship in a different city or province.
In this regard, family law principles across Canada have developed and proceeded along a roughly uniform path. However, in 2010 British Columbia put forth a comprehensive set of proposals for reform, as part of a White Paper put out by the government. This in turn resulted in amendments to B.C.’s Family Law Act, which were enacted in late 2011 but which are not yet in force. (The proposed in-force date is in approximately 12-18 months’ time). The aim of these reforms is to make the law on relocation more certain, by reducing the unpredictability of outcomes, by encouraging settlement, and by allowing parents to plan their lives better.
For one thing, the B.C. amendments impose some firm rules surrounding the question of which parent bears the burden of establishing that the proposed move does (or does not) serve the child’s best interests. Specifically, where the day-to-day care of a child is “substantially equal”, the parent who wants to move the child bears the burden of proof to show that the proposed relocation would be done in the child’s best interests, and in good faith. On other hand, if responsibility for the care of the child is not split in a manner that is “substantially equal”, then the burden falls to the parent opposing the move to show that it would not be in the child’s best interests. In either case, the parent who seeks to move the child is generally obliged to provide a concrete plan showing that “reasonable efforts” will be made to find ways to preserve the child’s relationship with the other parent.
In addition to these rules and presumption relating to burden of proof, the legislative changes also bring about certain enhancements in connection with mobility, including:
• Implementing mandatory notice of moves. Generally, there will be a mandated 60-day notice period, by which any parent proposing a move (with or without the child) must give the other parent advanced notice. (There are exceptions in cases where there is an ongoing risk of violence, or where the child has no relationship with the non-moving parent).
• Defining the concept of “relocation”. This definition focuses on the impact of the child’s on existing primary relationships, rather than using factors such as distance moved or travel times.
• Providing criteria for the courts’ assessment of “good faith”. Courts are specifically directed to consider such factors as: the reasons for the move; the likelihood it would enhance the general quality of life of the child and the guardian proposing the move, including improved financial, emotional or educational opportunities; and any existing restrictions on relocation in an order or agreement.
• Requiring courts to aim to preserve existing parenting arrangements to the greatest extent possible. This prevents the decision on whether to allow relocation from becoming an indirect re-litigation of the fundamental issues between the parents relating to custody and parenting.
In effecting these changes, British Columbia becomes the first Canadian to jurisdiction to address the legal issues surrounding mobility by way of specific legislation. It will be interesting to see whether other Canadian jurisdictions follow suit.
