09 July 2011

Prof. Thompson Digests BC Law on Mobility

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

On 8 July 2011, Professor Rollie Thompson, one of Canada's leading academics in family law and a co-author of the Spousal Support Advisory Guidelines (PDF), presented a summary of the recent British Columbia case law on mobility issues at a conference organized by the BC Continuing Legal Education Society.

Mobility issues are among the most difficult problems family law lawyers are called upon to address, and come up when one parent wants to take the children and move away from the other parent. Small moves really aren't the issue; what I'm talking about are moves out of town which will have a serious impact on the non-moving parent's ability to spend time with the children. The problem with moves like this is that while the moving parent usually wants to move for important reasons (to take a new job, to go to a new school, to be with family, or to live with a new partner), the move will have an inevitable impact on the non-moving parent's relationship with his or her children, and it can be extremely difficult to balance the moving parent's legitimate interest in moving with the non-moving parent's equally legitimate interest in maintaining a relationship with the children.

A 1996 case of the Supreme Court of Canada, Gordon v. Goertz, was supposed to provide guidance about when moves should be allowed and when they shouldn't, and the case set out a helpful list of factors supporting moves and factors opposing them. However, in the years which followed some cases interpreted the Gordon factors one way and some interpreted them another way, with the result that the case law has become as useless hodgepodge and Gordon can be made to say anything you want it to say. In fact the only useful thing you can get from the case law on mobility is the fact that in a narrow majority of cases the parent with primary care of the children gets to move.

This is tremendously difficult for family law lawyers, as it means that we can't give our clients meaningful predictions about whether a move will be allowed or not. All we can offer is a statistical observation which says nothing about what will happen in their particular circumstances.

This is where Professor Thompson's presentation comes into things. The last time I heard an analysis of post-Gordon cases was in 2003 or 2005, and the conclusion the speaker reached was that in something approaching 60% of Canadian mobility cases, the parent with primary care was able to move. Professor Thompson took a look at British Columbia mobility cases over the last few years and provided a number of observations about trends in this province:
  • The parent with primary care is able to move about 50% of the time in Canadian cases these days, down from 60%, but moves are permitted about 57% of the time in BC.
  • Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision.
  • Moves were refused in 8 of 9 cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases.
  • Moves were allowed three-quarters of the time when the children were aged 0 to 5, declining to about half the time for children aged 6 and older.
  • Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.
  • The rule from Gordon that the reasons for the move should not be canvassed is almost universally ignored, and applications to move will not succeed when the application is made in bad faith or for trivial reasons.
Bearing in mind that statistics can only give you information about general trends and not about what the decision will be in a particular case, it seems that applications to move will most likely succeed when:
  1. the child is of pre-school age;
  2. the parent wishing to move has clearly been primarily responsible for the care of the children;
  3. the application is made after trial; and,
  4. the application is made for a good reason.
On the other hand, applications to move will most likely fail when:
  1. the parents share the children's time equally or near-equally; and,
  2. the application is made in bad faith or for a bad reason.
You can get a bit more information about mobility issues from my website.

9 comments:

  1. What do cases say when one parent is a "deadbeat"?

    I have A three year old son, husband and I separated when I was pregnant. Child lives with me never with dad and over three years I've gotten $250. He earns under the table but makes about $50k.

    I want to return to another province and live with my parents and go to school znd get a good job.

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  2. I just got moved by the company I work for. I did not ask to move. I recieved a call,after moving,from my wife and was told we are separating. I have already moved and she will not move to the area I am now working so I can see my kids. I am willing to pay support and take the children, she will not let me have the same access to the children I used to.

    What are my and the children's rights?

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  3. This is a reminder to everyone that I cannot give legal advice in reply to comments, only because of the potential for conflicts of interest. As long as I have the time, I'll be happy to talk to anyone needing legal advice for a few minutes, as long as my office can run a conflict check first. Call me at my office at 604-689-7571.

    ReplyDelete
  4. What is a conflict check?
    Thank you,

    ReplyDelete
    Replies
    1. When a lawyer is approach by a potential client looking for the lawyer's services, whether as paid counsel or for unpaid legal advice, the lawyer will run a conflict check to make sure that taking the client wouldn't put the lawyer in a position of conflict with respect to an existing client. The problem of conflict boils down to the ethical principle that a lawyer cannot act for someone where the lawyer's services would be adversely affected by the lawyer's duties to another client or a past client.

      Essentially, what I'm looking to check is that neither I nor anyone else in my firm ever acted for the previous spouse of the potential client.

      Delete
  5. I have joint custody of my 14 year old through my separation agreement. I am the primary care giver and the other parent has visitation every second weekend and one evening meal once every two weeks and an additional two weeks in the summer (which hasn't been exercised in three years) and one week at Christmas (which hasn't been exercised in three years) My child refuses to go for weekend visits any longer. But sometimes will agree to go for a meal.

    I have been transferred by choice and want to move to a neighbouring province which is 3.5 hours drive and I am receiving resistance from the other parent.

    The other parent does not exercise visitation and usually doesn't notify us that the visit will be skipped. I am concerned that this move may be blocked. Is my child old enough to state a preference in where he wishes to live and who he wants to live with?

    I have been through a lengthy divorce with the other parent and have barely receive any support for the past 7 years. My divorce was heard in February but the decision will not be out until possibly the end of June at the latest. I want to move as soon as the school year is over. Since I am the primary care giver with joint custody, can I move and deal with a mobility order after the move? What are my chances of being granted a move that I requested with a child that age? Thank you.

    ReplyDelete
    Replies
    1. I cannot give legal advice in reply to comments. As long as I have the time, I'll be happy to talk to you after my office has run a conflict check. Call me at my office at 604-689-7571.

      Delete
  6. Is there anything you know of on case law about children moving from a custodial parent (of three years) in one province, to a non-custodial parent (formerly the at-home full-time-parent for 10+years) in another province? The non-custodial parent moved away but made great efforts to see the children every 2-3 months, and talk to them regularly. One of the children now lives with the non-custodial parent. The other children are living with step-siblings who sexually abused the other child. Where to begin researching case law on this?

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  7. I can see a move possibly happening in a case like this. Before you do anything, you really should see a lawyer in your neighbourhood and get his or her thoughts on your circumstances. If money is an issue, you can try to find a pro bono legal clinic through a group like Access Pro Bono, or a lawyer who will give you an "initial consultation" at no fee. There's also the CBA's lawyer referral service which will hook you up with a local lawyer for $25 for half an hour.


    you can't find a lawyer who offers initial consultations

    ReplyDelete