The Proper Legal Framework for Relocation
Last week I gave a broad overview of the law on relocation in BC. That post was targeted at non-lawyers, to give people a sense of the relevant legal issues that arise. This article is more directed at a legal audience: this my argument of the clearest framework for assessing relocation applications under the Divorce Act.
In my view, the court ought to assess relocation disputes that arise under the Divorce Act by determining the appropriate allocation of parenting time and decision-making in the circumstances, with a consideration of the additional factors related to relocation set out in s. 16.92 of the Act.
Under the Divorce Act, the authority to authorize or prohibit relocation only exists in the context of an order about parenting time or decision-making.
The provisions on relocation are s. 16.1(7) and ss. 16.9 to 16.96. Section 16.96 relates to a person who merely has contact with a child and is not relevant here. Subsection 16.1(7) must, grammatically, be read in conjunction with 16.1(1):
16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by
(a) either or both spouses; or
(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.
…
(7) The order may authorize or prohibit the relocation of the child.
Sections 16.9 – 16.96 do not provide any separate authority for the court to make orders about relocation. Rather, those sections set out:
a. A notice scheme (ss. 16.9);
b. A particular circumstance where relocation is authorized (s. 16.91); and
c. Additional factors the court must consider in relocation disputes (s. 16.92).
Put plainly, the court’s authority respecting relocation only exists in the context of an order about parenting time and decision-making.
There is a logic to tying relocation disputes to parenting time orders. A decision simply approving or denying ‘relocation’ does not address the greater questions of where the children ought to spend their time and who ought to make parenting decisions.
This view is buttressed by the recognition that the Court generally ought not to decide where parents live or do not live, except in very limited circumstances of family violence which do not apply here.
This interpretation of the Divorce Act is consistent with provisions of the Family Law Act on relocation.
Section 46 of the FLA deals with changes to a child’s residence when there is no existing parenting order or agreement. Under s. 46(1)(b) the section only applies in the circumstance when there is an application about parenting arrangements.
As an aside, in the case of a proposed relocation, unlike here where one parent has already moved, it may make more sense for the court to issue a conditional ruling, that is to make a determination of the best parenting arrangements in the event that the relocating parent relocates. While this involves a conditional order – generally unadvisable – it better reflects the factual circumstances before the court and does not bind the parents to an arrangement that is in fact based on a proposal and not a manifest set of circumstances.
While determining the allocation of parenting time and decision-making cover nearly all of the relevant elements, it must be acknowledge that some are not captured: for the non-relocating parent is often likely to lose some part of their relationship with the children outside of their parenting time, whether at extra-curricular activities, special school events, emergencies, or unplanned changes to the parenting schedule. These extra elements keep a relocation application from being completely translated into a parenting time application.
Still, while it is imperfect, a determination of the property allocation of parenting time and decision-making between the parties provides the most robust and most coherent framework we have to assess relocation applications.
