15 January 2015

Court of Appeal Releases Helpful Decision on Relocation under the Divorce Act

The British Columbia Court of Appeal has just released a decision on relocation under the Divorce Act that will be very useful for practitioners and anyone researching the issue. Relocation cases, also known as mobility cases, happen when one parent wants to take the child and move a significant distance away from the other parent. Most of the time, the staying parent objects to the move because of the effect the distance will likely have on his or her relationship with the child; it is terribly difficult, if not impossible, to maintain a close relationship with a child when contact is reduced to a telephone call once a week and, depending on the distance, weekend visits once every two or three months.

In T.K. v R.J.H.A., the parties were married and the wife sought to move from Victoria to Toronto with the two children. The trial judge considered the wife's claim under the Divorce Act rather than the Family Law Act, and ultimately concluded that it was in the children's interests to continue with the shared parenting arrangement that had prevailed previously. The wife appealed this result.

I don't think it's necessary to say much about this case, as the law, at least the law emanating from the Court of Appeal, is fairly well settled. The case, however, should be read and is very helpful for:

  • the court's excellent survey of the leading appellate cases on mobility; 
  • confirming that Gordon v Goertz remains the leading case for mobility applications heard under the Divorce Act;
  • addressing the restricted circumstances under which the reasons for a proposed move may be considered under Gordon; and,
  • discussing the double-bind that can arise if there is a factual presumption in favour of the status quo and against relocation.
The cases reviewed in T.K. include Nunweiler v Nunweiler, Falvai v Falvai, S.S.L. v J.W.W., Hejzlar v Mitchell-Hejzlar and Stav v Stav, appeal cases all. The court's description of the law on relocation as a "jurisprudential minefield" is apt.

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