When Can You Move with the Children?

In a recent court decision on an interim application in N.A.F. v. C.D.M., 2013 BCSC 2294, a mom was ordered to return to Squamish, B.C. with the parties’ two children after moving to Kelowna without notifying the father. The parties were married for 9 years before separating. They lived in Squamish with their two children age 4 and 7. The mom was a child, youth and family counsellor and the father was a chiropractor.

Shortly before separating, the mom advised the father that she met someone she was interested in pursuing a relationship with. The man lived in Kelowna. The mom then took the children to Kelowna on a trip and never returned. She subsequently obtained a job in Kelowna as a counsellor. The parties did not have any agreements or orders with respect to custody and access of the children. While in Kelowna, the mom obtained a protection order without notice against the father, citing concerns of past violent behavior towards her. She did not advise the court that by then she had already moved to Kelowna with the children without notifying the father.

The Principles

The court outlined the approach taken on initial applications addressing children’s residence, where there are no pre-existing custody orders as follows:

1. Where competing custody claims and mobility issues are involved, the Court is to take a “blended approach”, i.e., to balance all relevant factors including a parent’s (proposed) move with the children to a new community.
2. The factors to be taken into account include the desirability of maximizing contact; the views of the child; the custodial parent’s reason for moving only in exceptional cases where it is relevant to a parent’s ability to meet the needs of the child; the disruption to the child of a change in custody; and the disruption of the child consequent on removal from family, schools and the community he or she has come to know.
3. The focus of the inquiry is the impact of the (proposed) move on the child’s best interests.
The list of factors to be taken into account when assessing the best interests of the child are set out in s. 37 of the Family Law Act.

Based on the evidence presented, the Court found that the mom moved to Kelowna primarily to further her relationship with her new partner, the move was primarily beneficial to the mom, not to the children, the mom did not discuss the intended move with the father, and there was no evidence that the children’s safety, security or well-being was at issue while the children were with the father. The mom was ordered to return the children to Squamish to be closer to their father.

Commentary

The outcome of mobility cases is often difficult to predict. Before the Family Law Act, lawyers relied on a number of factors based on prior case-law to help determine the most probable outcome of the decision. Arguably the present situation has been simplified by the paramountcy of the “best interests of the child” analysis, and the fact that, at the end of the day, the question that matters the most is: what is in the best interest of that child?

Based on the court’s decision in N.A.F. v. C.D.M., 2013 BCSC 2294, we suggest the following to help skew the odds in your favor if you are planning a move with the children:

• Ensure the move is beneficial to the children (e.g., because it places them in greater contact with family, or with the other parent who has custody/access/parenting time with the child).
• If the move is not on it’s face beneficial to the children, ensure that the primary goal of the move is to benefit the children (e.g., parent moves to obtain better employment/housing to take better care of the children).
• Minimize the disruption to the child as much as possible, which includes minimizing the disruption to the children’s school, daily life and contact with family members.
• Discuss the proposed move with the other parent who has custody/access/parenting time, and all guardians, prior to the move.

For more information about relocating with your children, contact one of our family law lawyers: David Halkett, Leah Donaldson.

Happy parenting from the McQuarrie Family Law Team!