COLUMN: Mobility under the Family Law Act

One of the most difficult issues is when one parent seeks to move with a child

  • Aug. 30, 2015 5:00 a.m.

Legalease by Karen McNeilly

When one parent seeks to move with a child to a distant location following separation, it is one of the most difficult issues for the courts and family lawyers to deal with.

In the words of Master Keighley of the Supreme Court of British Columbia: “For good reason, the prospect of a relocation application invokes something akin to dread in some members of the court. Almost inevitably, someone’s heart is broken no matter what the outcome of the application.

If the party seeking to relocate is denied permission, plans are shelved, opportunities are lost and the overall welfare of the family, beyond considerations strictly concerned with the best interests of the child, are compromised. If the application is allowed, the party left behind struggles to maintain a relationship with the child often at considerable distance and expense, frequently in circumstances of modest means.”

Generally, under the Family Law Act the parent wishing to relocate is required to give 60 days’ notice to anyone else who is a guardian or has contact with the child. The other guardian who may wish to oppose the relocation will have 30 days from delivery of that notice to file an objection to the move taking place.

Generally the test to consider for relocation is set out in the Family Law Act and includes considerations such as: 1) Whether the proposed relocation is made in good faith; 2) Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, the relocating guardian; 3) If the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child’s other guardians or persons who are entitled to have contact with the child.

It is the difficult task of the court to weigh these factors along with a consideration of what is in the best interests of the child, in order to arrive at a decision that will result in the least disruption to the child and their relationship with each parent.

Karen McNeilly is an associate lawyer with RDM Lawyers LLP in Abbotsford. She practises in the area of family law. Questions or comments about this article can be sent to legalease@abbynews.com.

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