42
edits
Difference between revisions of "Changing Family Law Orders and Agreements Involving Children"
Jump to navigation
Jump to search
Changing Family Law Orders and Agreements Involving Children (view source)
Revision as of 00:19, 22 February 2017
, 00:19, 22 February 2017no edit summary
Sam Rapoport (talk | contribs) |
Sam Rapoport (talk | contribs) |
||
| Line 185: | Line 185: | ||
==Relocating with or without a child== | ==Relocating with or without a child== | ||
Mobility is a fact of life in Canada. A parent who wants to move must have the other parent's consent or a court order. Generally, the reasons for moving include: | |||
*There is an employment opportunity. | *There is an employment opportunity. | ||
| Line 193: | Line 193: | ||
*There is a unique medical or therapeutic opportunity for either the parent or the children. | *There is a unique medical or therapeutic opportunity for either the parent or the children. | ||
Normally, the parent | Normally, the other parent doesn't want the children to move since a move could hamper that parent's ability to see the children as frequently and could harm the child's relationship with that parent. This is especially true when a parent seeks to move to another province or another country. Even within British Columbia, a relatively short move from Richmond to Chilliwack, for example, can impair a parent's schedule and relationship with their child. | ||
These problems, which used to be called ''mobility issues'', are handled under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' in different ways. | These problems, which used to be called ''mobility issues'', are handled under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' in different ways. | ||
| Line 209: | Line 209: | ||
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 than 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 this province, and what he learned was this: | 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 than 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 this province, 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% | *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. | ||
*Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision. | *Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision. | ||
*Moves were refused in eight of nine cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases. | *Moves were refused in eight of nine cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases. | ||
| Line 237: | Line 237: | ||
===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 | 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 two new tests to determine whether a guardian will be permitted to relocate if another guardian objects. | ||
Here's how it works. | Here's how it works. | ||
| Line 245: | Line 245: | ||
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. | ||
Third, if the parties can't resolve their differences about the move, 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: | ||
#he or she has proposed to move "in good faith," and | #he or she has proposed to move "in good faith," and | ||