Relocation Under The Proposed Family Law Act

As discussed in several of our department’s article since the summer of 2010, the provincial government of British Columbia released the White Paper on Family Relations Act Reform: Proposals for a new Family Law Act (the “Family Law Act”). As discussed, the Family Law Department at Pushor Mitchell wishes to produce a series of Legal Alert Articles outlining various parts of the Family Law Act that we believe are interesting and significant. This will by no means be an exhaustive review of all of the provisions of the Family Law Act, but rather a brief description of some of the proposed changes.

We began by review the key themes contained in the White Paper. I will continue this review with a discussion about the mobility or, as the White Paper refers to it, the Relocation provision.

The issue of mobility is a very difficult and perplexing one for clients. It is also an area of significant unpredictability which makes it difficult for lawyers to advise their clients with a sense of certainty. Essentially what mobility applications deal with is an attempt by one parent to move or relocate with the child or children of the marriage or relationship. Such move, would, from the parent being left behind, substantially affect the time that he or she spends with the child or children.

What often occurs in these situations is either, the parent wishing to move, gives notice to the other parent allowing that parent to respond. Such response often involves an application to court to oppose the move (or a restraining order to restrain the move) which is met by the relocating parent’s application for permission to move from the courts. These cases often end up in acrimonious, difficult and expensive hearings and trials whose results seem to vary significantly.

There are also some cases where the relocating parent simply relocates without consultation with the other parent or court order and the left behind parent is left to either seek an immediate court order to return the child to the previous residence or argue the issue of jurisdiction if the relocating parent chooses to commence legal proceedings in his or her new location. These proceedings are also very difficult and result in varying decisions from the court.

To remedy this area of significant uncertainty, the Family Law Act has included mandatory notice provisions by which a party must abide if he or she wishes to relocate with children. According to the Family Law Act, a parent wish to relocate must give the other parent a 60 day notice-to-move which will hopefully let the parties resolves their concerns around the impact of the proposed move and allow the parties to challenge the proposed move if required in Court.

It is hoped that this mandatory notice provision will assist parties in discussing proposed moves and allow the proper and suitable dialogue to occur between parents and avoid the “damage control” which has been common when parties simply move without consultation.

The mandatory relocation provision is another innovative way in which the courts can attempt to address procedural and, sometimes, legal confusion surrounding these areas.

* It is important to note that the White Paper is not law, but is a series of proposals that are being submitted for consideration.

Taryn Moore is a member of Pushor Mitchell’s Family Law Group. She can be reached at (250) 869-1265, or by email at [email protected]

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