When a couple who have children together decide to get a divorce, legal battles commonly arise concerning the assignment of decision-making responsibility (custody) of the child(ren) and the establishment of entitlement to child support in respect of the same. Although less common, issues also frequently arise concerning where the children of the marriage will reside post-divorce, particularly if one parent desires to move to another province or to relocate within the province to a distant location that would make the facilitation of parenting time difficult for the parent who seeks to remain in the same location.
How, when and whether a court will issue an order allowing one parent to relocate within Canada to a location far from the child(ren)’s other parent is a delicate assessment that courts undertake on a case-by-case basis.
A recent Supreme Court of British Columbia decision exemplifies the particular criteria that the courts of BC will consider in making such a decision.
Mother Seeks to Reduce Father’s Parenting Time After Separation
The parties to the divorce in E.R.G. v J.R.G. began living together in Vancouver in 2015. They married in 2016 and separated in June 2021. At the time of the court hearing, their two children were aged 6 and 4, respectively.
In September of 2021, the mother filed a notice of family claim in the BC courts. The parties subsequently entered a consent order on October 12, 2021, concerning parenting and decision-making responsibility (custody) arrangements. Following that consent order, the mother was to have custody of the children for three days, after which the father would take custody of the children for two days on a repeating basis. This arrangement between the parties appeared to work until March 7, 2022, when the mother applied to have the father’s parenting time suspended, and she sought an order of protection for herself from the father. The father then applied, two days later, to have the parenting schedule changed to a 4/3 schedule, pursuant to which the mother would have custody of the children for four days, and then the father would have custody for three days, on a repeating basis. On March 11, 2022, the parties agreed to a consent order that dictated that the parties were not allowed to come within two metres of one another and that the father was mandated to attend anger management counselling. Both of the parties’ earlier applications were adjourned at that time.
In the ensuing weeks, months and years, the mother brought multiple applications seeking to reduce the father’s parenting time. The courts eventually resolved each application until November 27, 2023, when the mother served the father with a Notice of her intention to relocate, with the couple’s children, to Calgary, Alberta. On December 20, 2023, the parties agreed to a consent order that the children would not be relocated to Calgary without a court order.
The Legal Principles Applicable to Relocation of a Child of Divorce
In British Columbia, both the Divorce Act and the Family Law Act contain provisions that speak to what happens when one parent of a divorced couple desires to relocate with the children of the marriage post-separation. The relocation provisions of the Divorce Act (sections 16, 16.9, 16.91, 16.2 and 16.93) dictate that the party who wishes to relocate bears the onus of demonstrating to the court that the move is in the children’s best interests. Per section 16.92 of the Divorce Act, the criteria that the court must consider when deciding whether to grant an application for relocation include:
- the reasons for relocation
- the anticipated impact of the relocation on the child(ren)
- the amount of time spent with the child(ren) by each parent
- whether proper notice of the intention to relocate has been provided
- the existence of any order that restricts the geographic area in which the child(ren) may live
- the reasonableness of the relocating parent’s proposed schedule to vary parenting time with the other parent and
- whether each parent has complied with their respective parenting obligations
The over-arching consideration in assessing an application for relocation is the best interests of the children. To that end, section 16(3) of the Divorce Act dictates that the criteria to be considered in assessing whether a relocation order would be in the child’s best interests comprise:
- the needs of the child(ren), given their age and stage of development
- the nature and strength of the child(ren)’s relationship with each spouse, grandparents and other persons who play an important role in the child’s life
- the willingness of each spouse to support the other parent’s relationship with the child(ren)
- the history of the child(ren)’s care
- the views and preferences of the child(ren), taking into consideration the child(ren)’s age and maturity
- the child(ren)’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous heritage and upbringing
- any existing plans for the care of the child(ren)
- the ability and willingness of each person in respect of whom the order applies, to care for and satisfy the needs of the child(ren)
- the ability and willingness of each party to the application to communicate and cooperate, particularly with one another, on matters that affect the child(ren)
- any family violence, and
- and civil or criminal proceeding or other order, condition or measure that has been made that is relevant to the safety, well-being and security of the child(ren)
Importantly, under the Divorce Act, the court is expressly prohibited from considering whether the relocating parent will relocate regardless of whether the children are permitted to accompany them.
The Family Law Act’s sections 66-69 govern the relocation of children of divorce, and those provisions dictate similar parameters to be considered when assessing an application for relocation.
Although the provisions of each legislation are substantially similar, a court must identify the law in accordance with which it is making a decision. In this case, as the courts have previously found that “it is preferably to proceed under the DA where it is available in cases involving relocation, as the federal legislation is paramount,” the court proceeded to apply the provisions of the Divorce Act.
Application of the Law to the Facts of this Case
The court evaluated each of the 11 criteria enumerated under section 16(3) of the Divorce Act in turn and then assessed the totality of its findings to determine whether it was, in fact, in the best interests of the children in this case to grant their mother her application for relocation. To that end, the court expressly concluded that factors a, c, f, g and j favoured the father’s position that the children should remain in Vancouver, for the following reasons: the needs of the children were better served by remaining in Vancouver, in particular because the elder child had already attended school for two years and had formed friendships and established familiarity with the school and its routines, in addition to which the children had lived in Vancouver for their entire lives; as the mother had relentlessly attempted, for many years, to reduce the father’s parenting, it seemed she was less willing and/or able to facilitate or support parenting time for the father; the cultural and linguistic upbringing of the children, given that mother desired her children to be English/French and/or English/Spanish bilingual would not be affected by the children’s location in either Vancouver or Calgary, as learning a new language can be accomplished in either setting; the plans for the care of the children favoured remaining in Vancouver, where the children had established routines; while some family violence was found to have occurred in the father’s abrasive and controlling style of communication, the court was satisfied that the conduct orders previously issued by the court had sufficiently addressed the inappropriate communications in which he had engaged, and his communication had improved since the issuance of the orders. As such, the court found “the impact of the family violence to be minimal on the ability and willingness of the Father to meet the needs of the children. I find it is appropriate to have the parents cooperate”.
Factors b, d, e, h and k were each identified as either neutral or inapplicable for the following reasons: the children’s relationships with each parent were strong and close, such that this factor could be considered to favour neither relocation nor the status quo; as both parties had enjoyed substantially similar parenting time, the history of the children’s care constituted a neutral; the views of the children could not be considered in this case because the children were too young to articulate, in a meaningful way, their opinions on the matter; as both parents were equally involved and interested in their children’s lives and in parenting their children, the ability and willingness of each parent to meet the children’s needs was neutral; and, as there were no civil or criminal proceedings in respect of either parent at the time of the hearing, that factor was identified as inapplicable.
The only criterion that weighed in favour of awarding the mother her application to relocate was criterion I, in respect of which the court concluded that the mother had demonstrated significantly more willingness to communicate with the father concerning matters that involved the children, as proven by the evidence and testimony provided by the mother of advising the father with respect to children’s goings-on while they were in her care. The father’s utter failure to reciprocate in kind favoured the mother.
The Decision to the Application to Relocate the Children
The mother testified that the primary reasons for her relocation to Calgary comprised family support and financial savings, in that several of her immediate family members, to whom she is close, reside in Calgary, in addition to which her parents had offered to let the mother live with the children, free of charge, in a home owned by the grandparents, for as long as they wanted. The mother’s parents had also offered free child care for as long as required. The court rejected the mother’s stance that she primarily sought to move for financial and family support reasons and instead concluded that the true reason for the mother’s desire to relocate to Calgary was to diminish the father’s parenting time with the children, which was a goal toward the mother had been working for many years, as evidenced by her many applications to reduce the father’s parenting time.
As the mother worked remotely, “this is not a situation where the Mother cannot work in Vancouver or obtain a higher paying job in Calgary.” In these circumstances, and also because the mother had provided no evidence of her inability to move to a less-expensive area in Vancouver, the court was satisfied that the mother had “not presented any bona fide reasons for the relocation of the children.” Moreover, the impact of the relocation on the children, the amount of time spent with the children by each parent, and the reasonableness of the proposed plan to share parenting time all weighed in favour of denying the application for relocation. The court found the criterion with respect to geographic area restrictions to be inapplicable in the circumstances.
Taken together and balancing the findings to each of the criteria delineated in the Divorce Act, the court was satisfied that “the best interests of the children are better served by remaining with the Father in Vancouver.” In making this decision, the court specifically noted that it
“is concerned that if the children are relocated with the Mother to Calgary, the Mother will not foster a relationship between the children and the Father” and that the “Mother would diminish the children’s relationship with the Father.”
As such, the application for relocation was denied.
Contact Meridian Law Group Today for Assistance with Your Family Legal Matter
The family law lawyers at Meridian Law Group are experienced in assisting clients to navigate the choppy waters of family law disputes. Whether your dispute relates to property division, domestic agreements, family violence, or parenting issues, Merdian Law Group’s family law lawyers have the knowledge and expertise necessary to guide you through the process and ensure that your rights are preserved and protected at every step of the way.
Contact a family lawyer at Meridian Law Group today, either online or by telephone, at (604) 687-2277, to schedule a confidential and comprehensive meeting with one of our capable team members.