Relocation: Relocation: “To move or not to “To move or not to move, that is the question”move, that is the question”

Donna Y. YamazakiDonna Y. Yamazaki

Watson Goepel LLPWatson Goepel LLP

November 9, 2012November 9, 2012

The New Family Law Act: Watson Goepel LLP –The New Family Law Act: Watson Goepel LLP –Business Law Group MeetingBusiness Law Group Meeting

RELOCATIONRELOCATION

Relocation is an increasingly common event Relocation is an increasingly common event in children’s lives after their parents separate in children’s lives after their parents separate or divorce.or divorce.The The Family Relations Act Family Relations Act does not does not specifically address relocation.specifically address relocation.Case law is unclear: critics have called Case law is unclear: critics have called relocation law “rock, paper, scissors relocation law “rock, paper, scissors territory”.territory”.The uncertainty and unpredictability fuel The uncertainty and unpredictability fuel litigation and prolong disputes.litigation and prolong disputes.

FAMILY LAW ACTFAMILY LAW ACT

Division 6 of the Division 6 of the FLA FLA specifically specifically addresses relocation where there are addresses relocation where there are parenting arrangements (by agreement parenting arrangements (by agreement or order) already in place.or order) already in place.

New provisions provide a framework New provisions provide a framework for the courts and for parties to work for the courts and for parties to work within, but it may not diminish litigation within, but it may not diminish litigation in this area.in this area.

CERTAINTYCERTAINTY

The goal is to introduce greater The goal is to introduce greater certainty by:certainty by: Mandating notice of a proposed move.Mandating notice of a proposed move. Defining what constitutes a relocation.Defining what constitutes a relocation. Providing directions about what the court Providing directions about what the court

should take into consideration.should take into consideration.

““RELOCATION”RELOCATION”

Relocation is defined in s. 65(1) as:Relocation is defined in s. 65(1) as:

““A change in the location of the A change in the location of the residence of a child or child’s guardian residence of a child or child’s guardian that can reasonably be expected to that can reasonably be expected to have a significant impact on the child’s have a significant impact on the child’s relationship with a guardian, or one or relationship with a guardian, or one or more other persons having a more other persons having a significant role in the child’s life.”significant role in the child’s life.”

NOTICENOTICE

A child’s guardian who plans to relocate, A child’s guardian who plans to relocate, with or without the child, must give written with or without the child, must give written notice that provides:notice that provides: The date of the relocation.The date of the relocation. The name of the proposed relocation. The name of the proposed relocation.

Notice must be provided 60 days before the Notice must be provided 60 days before the proposed move.proposed move.Notice must be given to:Notice must be given to: All other guardians.All other guardians. Persons having contact with the child.Persons having contact with the child.

NOTICE EXEMPTIONSNOTICE EXEMPTIONS

Where notice cannot be given without Where notice cannot be given without incurring a risk of family violence.incurring a risk of family violence.

Where there is no ongoing relationship Where there is no ongoing relationship between the child and the other between the child and the other guardians or the person having contact guardians or the person having contact with the child.with the child.

PURPOSE OF NOTICEPURPOSE OF NOTICE

Provides the parties an opportunity to Provides the parties an opportunity to discuss the proposed move.discuss the proposed move.

If a relocation is agreed on, to work out If a relocation is agreed on, to work out a new parenting arrangement.a new parenting arrangement.

Provides time for a guardian to file an Provides time for a guardian to file an application if they oppose the move.application if they oppose the move.

BEST EFFORTS TO BEST EFFORTS TO COOPERATECOOPERATE

After the notice is given and before the date After the notice is given and before the date of the relocation, s. 67 requires that the of the relocation, s. 67 requires that the parties parties “use their best efforts to cooperate “use their best efforts to cooperate with one another for the purpose of resolving with one another for the purpose of resolving any issues relating to the proposed any issues relating to the proposed relocation.”relocation.”Intended to reduce the need for lengthy Intended to reduce the need for lengthy litigation and, thus, reduce the costs litigation and, thus, reduce the costs associated with disputes over relocationassociated with disputes over relocationThis does not prevent the starting of an This does not prevent the starting of an application opposing the relocation.application opposing the relocation.

OBJECTING TO THE MOVEOBJECTING TO THE MOVE

Once notice is given by a guardian, the Once notice is given by a guardian, the relocation may occur on or after the date set relocation may occur on or after the date set out in the notice out in the notice unless unless another guardian, another guardian, within 30 days after receiving the notice, files within 30 days after receiving the notice, files an application prohibiting the relocation.an application prohibiting the relocation.

Eliminates the need for a moving guardian to Eliminates the need for a moving guardian to wait the entire 60 days before planning the wait the entire 60 days before planning the move if another guardian does not object.move if another guardian does not object.

SECTION 69: THE “FACTORS”SECTION 69: THE “FACTORS”

Section 69 outlines the factors to permit or prohibit a Section 69 outlines the factors to permit or prohibit a proposed relocation.proposed relocation.Where the child’s guardians Where the child’s guardians do not have do not have substantially equal parenting timesubstantially equal parenting time, the guardian , the guardian wishing to relocate must satisfy the court:wishing to relocate must satisfy the court:

Reasonable arrangements have been proposed to preserve the Reasonable arrangements have been proposed to preserve the child’s relationship with the other guardians, persons with contact, child’s relationship with the other guardians, persons with contact, and persons with significant roles in the child’s life.and persons with significant roles in the child’s life.

Relocation is made in Relocation is made in good faithgood faith.. If the court is satisfied these factors are met, the move is If the court is satisfied these factors are met, the move is

presumed to be in the best interests of the child.presumed to be in the best interests of the child.

Where the child’s guardians Where the child’s guardians have substantially equal have substantially equal parenting timeparenting time with the child, the relocating guardian with the child, the relocating guardian must satisfy the court of the above factors and that must satisfy the court of the above factors and that the relocation is in the best interests of the child.the relocation is in the best interests of the child.

““GOOD FAITH”GOOD FAITH”

This provision is included to prevent relocation from This provision is included to prevent relocation from occurring where the underlying reason is to occurring where the underlying reason is to undermine or limit the child’s relationship with the undermine or limit the child’s relationship with the other guardian.other guardian.In determining if the proposed relocation is made in In determining if the proposed relocation is made in good faith, the court must consider all relevant good faith, the court must consider all relevant factors, including:factors, including:

Reasons for the proposed relocation.Reasons for the proposed relocation. Whether the proposed relocation is likely to enhance the Whether the proposed relocation is likely to enhance the

quality of life of the child, including increasing emotional quality of life of the child, including increasing emotional well-being or financial or educational opportunities.well-being or financial or educational opportunities.

Whether notice was given under s. 66.Whether notice was given under s. 66. Any restrictions on relocation contained in a written Any restrictions on relocation contained in a written

agreement or order.agreement or order.

IF RELOCATION PERMITTEDIF RELOCATION PERMITTED

When an order is made allowing a guardian When an order is made allowing a guardian to relocate that affects an order or agreement to relocate that affects an order or agreement for parenting arrangements, the court may:for parenting arrangements, the court may: Make or vary an order for parenting Make or vary an order for parenting

arrangements.arrangements. Goal is to preserve, to the extent possible, the Goal is to preserve, to the extent possible, the

parenting arrangements in the original agreement parenting arrangements in the original agreement or order.or order.

Make orders to ensure compliance by the Make orders to ensure compliance by the relocating guardian such as security in any form relocating guardian such as security in any form the court directs; and/or transfer specific property the court directs; and/or transfer specific property to a trustee named by the court.to a trustee named by the court.

CONCERNS FOR THE FUTURECONCERNS FOR THE FUTURE

FLA FLA provides a framework but does not provides a framework but does not necessarily decrease litigation.necessarily decrease litigation.

Emphasis is on parents wanting Emphasis is on parents wanting substantially equal parenting time at substantially equal parenting time at the outset despite the status quo.the outset despite the status quo.

Ongoing judicial discretion decreases Ongoing judicial discretion decreases certainty.certainty.