Difference between revisions of "Changing Family Law Orders and Agreements Involving Children"

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Changing Family Law Orders and Agreements Involving Children (view source)

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It sometimes happens that a parent who has the children for most of the time, whether because of a court order or a separation agreement, wants to move out of town. The parent who wants to move generally wants to move because:
It sometimes happens that a parent who has the children for most of the time, whether because of a court order or a separation agreement, wants to move out of town. The parent who wants to move generally wants to move because:


#there is an employment opportunity;
*There is an employment opportunity.
#the parent is in a new relationship with someone from out of town;
*The parent is in a new relationship with someone from out of town,.
#the parent wants to be closer to family;
*the parent wants to be closer to family.
#there is a unique educational opportunity for either the parent or the children; or,
*There is a unique educational opportunity for either the parent or the children.
#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 on the other end of the stick doesn't want the children to move since any move out of the local area will hamper that parent's ability to see the children as frequently, and the lessening of contact may 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 with the child.
Normally, the parent on the other end of the stick doesn't want the children to move since any move out of the local area will hamper that parent's ability to see the children as frequently, and the lessening of contact may 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 with the 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.


===The ''Divorce Act'' and ''Gordon v. Goertz''===
===The ''Divorce Act'' and ''Gordon v. Goertz''===


Relocation under the ''Divorce Act'' is about applying to vary an order for custody or access. Inevitably, a move of even only a few hours away can frustrate a spouse's access to a child, and for the moving spouse to avoid being in breach of an order for custody or access, the spouse will need to apply to an order adjusting the arrangements for custody and access to allow the move. The most important case on this issue is ''Gordon v. Goertz'', discussed above. The reasoning from that case is roughly this:  
Relocation under the ''[[Divorce Act]]'' is about applying to vary an order for custody or access. Inevitably, a move of even only a few hours away can frustrate a spouse's access to a child, and for the moving spouse to avoid being in breach of an order for custody or access, the spouse will need to apply to an order adjusting the arrangements for custody and access to allow the move. The most important case on this issue is ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', discussed above. The reasoning from that case is roughly this:  


*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.
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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 ''Gordon'' 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%, but 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%, but moves are permitted about 57% of the time in BC.
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*Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.
*Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.


The tough part about all of this is that it's all fine and dandy to know what happens to people on a ''statistical'' basis, but statistics don't tell you anything about what is going to happen if ''you'' want to move! However, some of the factors that courts have found to favour a proposed move are these:
The tough part about all of this is that it's all fine and dandy to know what happens to people on a ''statistical'' basis, but statistics don't tell you anything about what is going to happen if ''you'' want to move! However, some of the factors that courts have found to favour or reject a proposed move are these:
 
{| class = wikitable
#the spouse seeking the move has better job prospects or a guaranteed job at the proposed destination;
! Factors in Favour
#the spouse has a support network of family and friends at the new home;
! Factors Against
#there is some benefit at the new home not available at the old home, like better schools or medical programs;
|-
#the spouses have resources available to them which will allow the other spouse to visit the children frequently, like a lot of money or being an employee of an airline;
|#The spouse seeking the move has better job prospects or a guaranteed job at the proposed destination.
#the children aren't particularly close to or have no relationship with the spouse who will be staying behind; or,
#The spouse has a support network of family and friends at the new home.
#the children are performing poorly in their present setting, and will do better in the new one.
#There is some benefit at the new home not available at the old home, like better schools or medical programs.
 
#The spouses have resources available to them which will allow the other spouse to visit the children frequently, like a lot of money or being an employee of an airline.
Some of the factors which might indicate that the move is a bad idea are these:
#The children aren't particularly close to or have no relationship with the spouse who will be staying behind.
 
#The children are performing poorly in their present setting, and will do better in the new one.
|
#the children have lived in their present setting for a significant amount of time and have established roots in their community;
#the children have lived in their present setting for a significant amount of time and have established roots in their community;
#the move will damage or terminate the other spouse's relationship with the children;
#the move will damage or terminate the other spouse's relationship with the children;
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#the parent seeking the move has no particular ties to the destination, or the move is proposed solely for that spouse to be in a new relationship; or
#the parent seeking the move has no particular ties to the destination, or the move is proposed solely for that spouse to be in a new relationship; or
#there is no way to balance the effect of the move with more extended time with the other spouse, such as extended summer access, or access over the whole of the winter holiday.
#there is no way to balance the effect of the move with more extended time with the other spouse, such as extended summer access, or access over the whole of the winter holiday.
 
|}
It is almost impossible to predict the result of an application to move under ''Gordon''. Because relocation issues are among the most hotly argued and difficult issues there are in family law, the assistance of a lawyer is highly recommended.
It is almost impossible to predict the result of an application to move under ''Gordon''. Because relocation issues are among the most hotly argued and difficult issues there are in family law, the assistance of a lawyer is highly recommended.


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