The new Family Law Act (FLA) came into force a little over three months ago. Since then we’ve seen a slow trickle of rulings come through Provincial Court that clarify the law and will be used to inform future rulings. The most recent of these rulings was S.G. v. J.P, which dealt with moving with children. In this case, two divorced parents shared equal parenting time of their daughter and the mother wanted to move from the interior to the lower mainland with the child.
Under the FLA, a guardian who wants to relocate with a child must give 60 days’ notice to every other guardian or person who has contact with the child. The exception to this is if there is a court order in place exempting this procedure. Under the Act, “relocation” is any move that will have a “significant impact” on the child’s relationship with the other guardian or person with contact.
After receiving the notice, any other guardian then has 30 days to file an objection with the court. Assuming you don’t share “substantially equal” parenting time, then the guardian proposing the move must prove:
- the move is in good faith, and
- reasonable arrangements have been proposed to preserve the child’s relationship with the other guardian.
If you do share equal parenting time, then you must also demonstrate that the move is in the best interest of the child.
In this specific case, the judge was satisfied that the first two conditions were met: the mother had a good reason to move, wasn’t making the decision out of spite, and had proposed a schedule that would preserve the daughter’s relationship with her father and extended family. The judge found, however, that the mother had not satisfied the third criteria due to uncertainties in the mother’s plan and the closeness of the daughter to her extended family in the interior.
As JP Boyd points out in his Family Law Blog, this shows us two important things:
- a failure in just one of the three criteria may be enough to stop a move;
- the third criterion —the best interest of the child — requires more thought and consideration than the first two criteria . Each of the best interests factors should be taken into account when determining the best interest of the child.
A full list of the criteria considered for determining the best interest of the child can be found in s. 37(2) of the FLA. You can find more information on relocation and the Family Law Act in our publications Guide to the New BC Family Law Act and Living Together or Living Apart.