In R.D.S. v. R.M.U., 2019 BCSC 525, the applicant mother sought an order allowing her to relocate from the Lower Mainland of British Columbia to California with the parties’ child. The respondent father opposed the relief sought, and simultaneously sought to vary the parenting regime in an attempt to obtain shared parenting.

The parties were married in 2008, and divorced in 2017 while living in Calgary. Their divorce was handled by Court of Queen’s Bench of Alberta, and in the related action the parties were granted joint custody with the child residing primarily with the mother. At this time, the mother also sought and obtained the court’s permission to move to Vancouver with the child.

After the move, the parties entered into a consent order in BC. Parts of the Alberta order were varied. The mother was given sole custody of the child, and the father (described in the order as a resident of Toronto) was given set parenting time which was to be exercised via Skype for approximately 2.5 hours over three days each week.

The issues dealt with in the current application arose in the summer of 2018.

With respect to the father’s variance application, the judge noted that from 2015 to 2018, the father choose to have just three in-person parenting periods with the child, and often missed the video calls that he was entitled to pursuant to the BC order. The judge expressed concern that the father’s pattern of ‘never fully exercised his parenting time’ indicated he may do the same moving forward. The judge further noted the drastic nature of the father’s proposed regime given the lack of contact to date, the negative effect such a regime would have on the mother’s ability to relocate, and the unlikelihood that the parents would be able to manage a co-parenting situation given their communications in the past.

Although the judge did find that the father’s move to Vancouver following the mother’s application for relocation constituted a material change in circumstance (as required to vary a court order regarding parenting), the father’s application was ultimately dismissed as the proposed 50/50 shared parenting was not in the child’s best interests.

With respect to the mother’s relocation application, the judge considered that mother’s proposed move to California was prompted by the facts that her fiancé (who was a 20 year veteran of the San Francisco police department) lived there, and that the mother wanted to build a life there with her fiancé and child. This reason was made known to the respondent father on multiple occasions prior to the application. Accordingly, the judge found that the mother had been forthright and clear as to the purpose of the relocation.

The judge then considered the mother’s submissions as to the ‘good support network of family and friends’ that the child would have in San Francisco. The judge also found that it was unlikely the mother and child would be economically prejudiced in any way, and that the child’s life would actually be enhanced by the move. All of this led the judge to find that the mother had satisfied the good faith element of the legal test for relocation.

The judge went on to find that the mother had provided the father with four reasonable and workable parenting proposals in her attempts to find an arrangement that would preserve the father’s relationship with the child, thus satisfying the second element of the legal test for relocation.

Finally, the judge considered the relevant factors necessary to identify whether or not it was in the child’s best interests to relocate (including the child’s health and emotional well-being, the nature and strength of the relationships between the child and the significant others in the child’s life, the history of the child’s care, the child’s need for stability,the ability of the parties to exercise their parental responsibilities and their ability to co-operate thereon, and the impact of family violence).

The judge found that the move was in the child’s best interests and approved the mother’s application.

This case shows that parents seeking to move out of province or even out of the country may be successful if the parent seeking to relocate is successful in proving that the proposed relocation is made in good faith, that the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and that the relocation is in the best interests of the child.

This article is intended for information purposes only and should not be taken as the provision of legal advice. Richard A. Cleveland is a lawyer whose practice focuses on family, wills and estates, and employment law. He is a partner with the law firm of Cleveland Doan LLP and can be reached at(604)536-5002 or rick@clevelanddoan.com.