Difference between revisions of "Changing Family Law Orders and Agreements Involving Children"
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*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. | *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. | *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 | *This assessment is based on the findings of the judge who made the previous order, as well as 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 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. | *The focus is on the best interests of the child, not the interests, rights and entitlements of the parents. | ||
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*a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care, | *a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care, | ||
*the parties' relationship has worsened to the point that they can no longer cooperate, | *the parties' relationship has worsened to the point that they can no longer cooperate, | ||
*a party has attempted to interfere with the child's relationship with the other party, | *a party has attempted to interfere with the child's relationship with the other party, or | ||
*the party's time with the child is proving harmful to the child's mental or physical health and welfare. | *the party's time with the child is proving harmful to the child's mental or physical health and welfare. | ||
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*The focus is on the best interests of the child, not the interests, rights and entitlements of the parents. | *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 | 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, and 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. | *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. | ||
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===The rules under the ''Family Law Act''=== | ===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 two new tests to determine whether a guardian will be permitted to relocate if another guardian objects. | 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: | |||
* Before there is a change to a child’s residence that can reasonably be expected to have a significant impact on that child’s relationship with another guardian, the guardian seeking the change in residence must bring an application for an order respecting parenting time, pursuant to s. 45 of the ''Family Law Act''. | |||
** Section 46(2) of the Family Law Act sets out the test to determine whether there can be changes to a child’s residence: 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 | |||
(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 | |||
(b) must not consider whether the guardian who is planning to move would do so without the child. | |||
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 | Here's how that process works:. | ||
First, under s. 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 | First, under s. 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 s. 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. | Second, under s. 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 s. 69(4) that: | 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 s. 69(4) that: | ||
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If the move is allowed, the objecting guardian may ask the court to vary the old arrangements for parenting time and, under s. 70(2), the court is required to "seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order." | If the move is allowed, the objecting guardian may ask the court to vary the old arrangements for parenting time and, under s. 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== | ==Resources and links== | ||
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{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]],April | {{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]],April 16, 2019}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||