Non-Removal And Relocation Orders Under The Family Law Act

By Pushor Mitchell LLP
Categories: Blog, Family Law

I. NON-REMOVAL ORDERS

Family Relations Act – Under the Family Relations Act, the Courts had general discretion to prohibit the removal of a child from an area within the province or from the province as a whole, if the Courts considered that this restriction was necessary and reasonable in the best interests of the child:  Section 35 (4).  We often saw these Orders being made early on in family law proceedings, in order to preserve status quo if a concern was put forward about one party leaving the jurisdiction with the child.

Orders typically were made as follows:

"Neither party shall remove the child from ("geographical area/i.e. "the Okanagan Valley" or "the Province of British Columbia") without the other party’s written consent or an Order permitting them to do so."

Family Law Act (the "Act") – Section 64 of the Act now gives specific authority to the Courts to make non-removal Orders.  That Section provides as follows:

64. (1) On application, a court may make an order that a person not remove a child from a specific geographical area.

(2) On application, if satisfied that a person proposes to remove a child from, and is unlikely to return the child to British Columbia, the court may order the person who proposes to remove the child to do one or more of the following:

(a)  give security in any form the court directs;
(b)  surrender to a person named by the court, passports and other travel records of the person who proposes to remove the child or of the child, or of both;
(c)  transfer specific property to a trustee named by the court;
(d)  if there is an agreement or order respecting child support, pay the child support to a trustee named by the Court.

Section 64 (3) clarifies that these non-removal Orders described in Section 64 (2) do not apply to the situation where one parent wants to move with the child.  Those relocation applications and Orders are dealt with under Division 6 of the Act.
 
II. RELOCATION

Division 6 (being Sections 65 – 71 of the Act) provides a scheme for the Court to deal with relocation or mobility applications in a step-by-step fashion.

Prior to the Act coming into force, mobility applications were dealt with by following the two stage test set out by the Supreme Court of Canada in Gordon v. Goertz, [1996]2 S.C.R. 27.  That test was as follows:

(1)  the applicant must show that there has been a material change in circumstances affecting the child; and

(2)  if this test is met, the applicant must show that allowing the move would be in the best interests of the child.

The Court set out that there was to be no default presumption in favour of the status quo (although the views of the custodial parent were to be given deference), and that the reason for the proposed move was not to be considered unless it was shown to be related to the parenting abilities of the parent seeking permission to move with the child.

There has been a lack of consistency in how Courts have applied the test from Gordon.  The Family Law Act Transition Guide published by the Continuing Legal Education Society cites the Ministry of Justice’s explanation for the Act’s provisions on relocation:

The Family Relations Act did not specifically address relocation and the case law is unclear.  Critics have called relocation law "rock, papers, scissors territory" and say that its uncertainty and unpredictability fuel litigation, prolong disputes, and interfere with parents’ ability to plan.

Section 65 of the Act defines "relocation" as "a change in the location of a residence of a child or child’s guardian that can reasonably be expected to have a significant impact on the child’s relationship with a guardian or one or more other persons having a significant role in the child’s life".

Section 65 (2) states that Division 6 applies if a child’s guardian plans to relocate with the child, and a written agreement or Order respecting parenting arrangements or contact with the child applies to the child.

This section is noteworthy, in that it applies only to variation applications, where there is already an Order or agreement in respect of parenting arrangements or contact with the child.  If there is no such pre-existing Order or agreement, the matter will be dealt with by way of an application respecting parenting arrangements or contact.  Section 46 of the Act applies to situations where one guardian wants to change the location of the child’s residence and there is no agreement or Order in place.  In those applications, Section 46 (2) says that the Court must consider, in addition to the factors outlined in Section 37 (2), which are the best interests of the child factors, the reason for the change in location of the child’s residence and that the Court must not consider whether the guardian who is planning to move would do so without the child.

The provisions in the Act that deal with relocation are also notable in the way that guardians and non-guardians are treated.  Specifically, while a guardian must give at least 60 days’ written notice of his or her decision to relocate to all other guardians and persons having contact with the child (Section 66), only a guardian may file an application for an Order to prohibit the relocation (Section 68).  A person who merely has contact with the child under an existing Order or agreement does not have standing to file such an application.  He or she is limited under Section 67 to bringing an application under Section 59, for contact, or Section 60, for an Order changing an existing contact Order (based on the material change in circumstances, being the intended move).

Section 67 requires that before the date of relocation, the guardians of the child and any persons who have contact with the child, must use their best efforts to cooperate with one another to resolve issues relating to the proposed relocation.  Clearly, this requirement is in keeping with the goals of the Act, in terms of encouraging out of Court resolution, wherever possible; practically, however, where only 60 days’ notice is required, one wonders how easy it will be for guardians, grandparents, etc. to reach an agreement on new arrangements for exercising parenting time and contact, in light of the proposed move, while still leaving time to secure a court Order, if necessary, in advance of that proposed move.

Under Section 68, if a guardian receives written notice from another guardian that he or she plans to move with the child in 60 days, the non-moving guardian must file an application, within 30 days after receiving notice, for an Order to prohibit the relocation.  The objective of the drafters was to eliminate the need for the moving guardian to wait the entire 60 days before planning the move if the other guardian does not object, and to give parties time to resolve the dispute before the intended move date.  This author queries the time constraints, however, as many of these mobility files require trials, or at least mini-hearings, to resolve the issues, and 30 days under our current system is not enough time to have a Case Conference, let alone a trial or hearing.

Orders Respecting Relocation

Under Section 69, a Court may make an Order permitting or prohibiting the relocation of a child by the relocating guardian.

In making that decision, the Court must look at the best interest factors in Section 37 of the Act, and at the factors in Section 69.

Section 69 (4) provides that, if an application is made to relocate, and the relocating guardian and another guardian do not have substantially equal parenting time, then:

(a)  the relocating guardian must satisfy the Court that:

(i)  the proposed relocation is made in good faith; and

(ii)  the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child’s other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child’s life, and

(b)  on the Court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the Court otherwise.

Section 69 (5) deals with scenarios where guardians have substantially equal parenting time. In that scenario, it provides that the relocating guardian must satisfy the Court:

(a)  of the factors described in subsection (4) (a), and
(b)  that the relocation is in the best interests of the child.

There is no rebuttable presumption here as there is in Section 69 (4).

Under Section 69 (6), there is guidance on what to consider in determining whether a proposed relocation is made in good faith.  That subsection states as follows:

For the purposes of determining if the proposed relocation is made in good faith, the Court must consider all relevant factors, including the following:

(a)  the reason for the proposed relocation;
(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 educations opportunities;
(c)  whether notice was given under Section 66;
(d)  any restrictions on relocation contained in a written agreement or Order.

Under Section 69 (7), the Court is not permitted to consider whether a guardian would still relocate if the child’s relocation were not permitted.  This codifies the common law as pronounced in Gordon.

Certainly the good faith comments address scenarios where there is a proposed relocation, at the heart of which is an attempt to oust the non-moving guardian from a child’s day-to-day life.

Section 70 addresses the types of Orders a Court can make if the relocation Order is granted.  It allows the Court to make a new Order, or a variation Order, respecting parenting arrangements, or to make any Order to ensure the relocating guardian complies with the terms of the Order permitting relocation, including an Order to give security or to transfer property to a trustee named by the Court.

Section 70 (2) mandates the Court, when making a relocation Order, to preserve, to a reasonable extent, parenting arrangements under the original agreement or Order.

The intention of the drafters, as expressed by the Ministry of Justice, was to restrict the discretion of the Courts in adjusting existing parenting arrangements and to prevent a re-examination of the entire parenting arrangement structure, as that structure was either arrived at initially through negotiation, or through a judicial determination of what was in the best interests at the time it was ordered or agreed to by the parties.

In considering the relocation provisions of the Act, one must be mindful that in making decisions under Division 6, the Court must consider, above all, the best interests of the child.  Since Section 37 (2) (b) requires the views of the child to be part of this inquiry (unless canvassing those views would be inappropriate), query how this will factor into the decisions made by the child’s guardians when looking at a possible relocation, or by the Courts in considering an application to permit or prohibit a move.  Since relocation typically has a significant impact on parenting time and on contact with non-guardians, canvassing the views of the child may well impact the decisions being made in these applications.  Despite the more standardized approach to these cases, this author suggests that the Courts will still be dealing with a lot of them.

If you have any questions regarding any issues set out in this article or need assistance with any family law problem, please contact Taryn Moore at  moore@pushormitchell.com or Monica McParland at mcparland@pushormitchell.com.