Relocating with Children: The Single Parent Know-Alls

Are you separated from your spouse and thinking about moving with your child? Before jumping on a plane, there are key questions that you need to ask and certain factors that you need to be aware of.

Firstly, does your child spend more time with you then they spend with your ex-spouse? If so, a court is more likely to allow you to relocate with your child than if the child spends equal parenting time with both parents. If your child spends equal parenting time with both you and your ex-spouse, then the only consideration a court takes into account is what is in the best interest of your child.

If you do not have equal, or near equal, parenting time with your ex-spouse then the considerations are different. A court will require that:

  1. You have made a proposal for reasonable and workable arrangements to preserve your child’s relationship with their other parent, persons who have contact with them, and persons who play significant roles in their lives; and
  2. Your proposed relocation is made in good faith.

What are reasonable and workable arrangements?

In the case of Hansen v. Ferguson, 2015 BCSC 588 the court found the mother proposed reasonable and workable arrangements to preserve the father’s relationship with the children by sharing all travel costs, returning to Victoria twice a year with the children, transferring all available travel points to the father for his use, and providing regular Skype contact and email reports when he was at sea.

Although every case is different, sharing the cost of travel, planning trips home, and ensuring the children remain in contact with the other parent are all factors that the courts will consider as reasonable and workable arrangements. Keeping in mind the courts want to see that your child will be able to maintain his or her relationship with their other parent.

What is the meaning of good faith with regards to relocation?

Good faith is defined in s.69(6) of the Family Law Act and includes:

  • the reasons for the proposed relocation;
  • whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
  • whether 60 days’ notice of an intention to relocate was given; and
  • any restrictions on relocation contained in a written agreement or an order.

Accordingly, if you can satisfy the court of the above, then the relocation is presumed to be in the best interests of the child and should thus be granted, unless the children’s other parent satisfies the court otherwise.

Returning to the case of Hansen v. Ferguson the court found that the mother had shown her cost of living would be substantially less in Ontario to that of Victoria, and the proposed move was well planned. The mother would have more emotional supports in Ontario through extended family and support of her boyfriend.  This would have a trickle-down effect on the children, given that she was the primary caregiver.

The court specifically stated that:

[48]As the primary caregiver, this improvement in the mother’s general quality of life will also benefit the children. However, neither the mother nor the children have personal connections with anyone in Pembroke other than R.W., and the children will be far away from their father, grandmother, aunt and cousin, with whom they have established close bonds. This is, of course, the primary concern, but it does not on its own show an absence of good faith. These children are very young and they have not yet established routines outside of their immediate family lives that are important for them. Adapting to a new life away from their father and his family may be challenging for them, but they will be with their mother with whom they also have very close bonds. And given the mother’s plan to have more time with them and to place them in daycare where they will meet other children, I would expect them to socialize in their new environment reasonably quickly.

[49] In this case, the mother has given a lot of consideration to the impact of this move on her children’s emotional well-being. Despite the separation from the father, I find that the relocation will likely enhance the general quality of their lives.

 

If you are thinking about relocating to a new city, with your child, please contact Velletta & Company today. We would be happy to advise you on the proper procedure and help you satisfy the above requirements.

 

About the Author:

Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Find out more about Jade by clicking HERE

Who Gets the Pet?

Pet_Custody_Case

Most pet owners consider their pet to be a member of their family and not just another piece of property.

Normally when separating from your spouse pets are considered property and are therefore subject to be divided within the overall division of property in your family law case. A pet, therefore, would be subject to the property law principles in the Divorce Act and the Family Law Act.

This means that in British Columbia the courts consider the following when answering the question of, “who gets the pet?”

  1. Who purchased the pet?
  2. Was the pet a gift to one of the parties?
  3. Who has paid for the majority of the expenses related to the pet?
  4. Is one of the parties the registered owner of the pet?
  5. Who has had possession of and/or cared for the pet since the parties’ separation?
  6. Who was principally involved in the pet’s early training?
  7. Who was principally involved in the pet’s day-to-day care?

Additionally, courts have expressly stated that:

(a)  Pets will not be treated in a manner such as children;

(b)  Courts are unlikely to consider interim applications for pet possession;

(c)  Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;

(d)  that pets are a variant of personal property;

As you can see, when a court considers the question of “who gets the pet” the question is more related to who the true owner is and not what arrangement is best for you and the pet. If you and your former partner both want to remain involved in your pet’s life, then it might be preferable to settle your pet custody dispute by consent in the form of a Consent Order or a Separation Agreement. This is because Judge’s tend to want to ensure some kind of finality for the parties while minimizing the likelihood for future conflict. Since, in the eyes of the law, pets are considered property, it is highly unlikely a judge would order some form of shared or joint custody of your pet.

Recent decisions, however, have challenged the status quo. The Court of Appeal of Newfoundland and Labrador case, Baker v. Harmina 2018 NLCA 15, involves a Bernese-poodle mix, Mya, who was “treated as a family member”. The couple had moved in together a short time after purchasing the dog, but when the couple separated a legal battle began over who got to keep her. Although In the end, the majority of the court considered the status quo property argument, Justice Lois Hoegg dissented in part, describing the issue of who owns Mya as being more complex than simply who bought her. Justice Lois Hoegg considered questions like:

  • Was the animal acquired during the relationship?

 

  • Who bore the burden of the care and comfort of the animal?

 

  • Who paid for the animal’s upkeep?

 

  • Who cared for it?

 

This could set the tone for future cases.

In conclusion, Velletta & Company can certainly help you in establishing an adequate way of dealing with the issue, or alternatively, moving forward in establishing your court case. Contact us today!

About the Author:

Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Find out more about Jade by clicking HERE

What You Need to Know About the New Family Law Act

Disclaimer

The Family Law Act (FLA) is a new law that came into effect on March 18, 2013 in British Columbia. The FLA governs issues such as parenting arrangements and responsibilities after separation, dividing family property, spousal maintenance and child maintenance, protection orders, and legal parenthood (although the Divorce Act (Canada) also applies to some of these issues in the case of married couples).

The FLA includes many changes from the previous law, and so the terminology or information you have heard about in the past may be different now. For example, words like custody and access have been replaced (guardianship and parenting time).

The FLA takes a child-centric approach, in part in an attempt to respond to research which indicates that conflict between parents is one of the strongest predictors of poor child outcomes. The FLA represents a shift from focusing on the rights of and relationship between the parents towards focusing on the relationship between the child and each parent.

The FLA was designed to encourage parties, and particularly parents, to resolve their differences and any legal disputes without going to court. The FLA specifically states that resolution out of court is preferred. Because the FLA encourages negotiated settlement, it also sets out requirements for parties and for family dispute resolution specialists (lawyers, mediators and other legal professionals). Specifically:

(1) Parties to a family law dispute are required to provide to the other spouse full and true information for the purposes of resolving a family law dispute. Agreements about financial issues (maintenance, division of family property and debt) which are negotiated based upon incomplete or inaccurate information are likely to be set aside or varied.

(2) Lawyers are required to assess for, among other things, family violence, in order to protect the client’s safety and to assist clients to choose the best option to resolve their family law disputes.

(3) Parties, lawyers and judges are required to consider only the best interests of the child when making agreements or orders about parenting arrangements. If family violence is present, the courts are required to take that into consideration when deciding what is in the child’s best interests.

Common Law Relationships and Separation

Separation advice Victoria BC lawyers

Even if you are not married, if you live with another person in a marriage-like relationship that person may be considered your spouse.

In order to be considered a spouse for the purposes of dividing property or debt you and the other person must have lived together in a marriage-like relationship for at least two years.

Read moreCommon Law Relationships and Separation

Common Law Relationships and the New Family Law Act

The new Family Law Act Gives Property Rights to Common Law Spouses

Many people do not realize that under the current Family Relations Act, unmarried spouses do not have property rights. That will change when the new Family Law Act (FLA) comes into force on March 18, 2013. The new FLA treats unmarried spouses just like married spouses when it comes to dividing property and debt, with one important difference: separated, unmarried spouses have to make a claim for property and debt division within two years of the date they separated. Separated married spouses do not have time limitation.

[A spouse is someone who is married to another person, or who has lived with another person in a marriage-like relationship for at least two years.]

The FLA says that separated, unmarried spouses have two years from the date of separation to bring an application for property and debt division. Since the FLA comes into effect on March 18, 2013, couples who separate less than two years before the Act comes into effect (so March 18, 2011) have to follow the new rules.

So what law will apply to you?

If you separated before March 18, 2011 but haven’t yet applied to divide property, you are not a spouse (at least for the purposes of property division) under either the old Family Relations Act or the new FLA.If you separated on or after March 18, 2011 but haven’t yet applied to divide property, then you are a spouse under the FLA. You can start a case now, under the existing rules, but once March 18, 2013 comes around, the new rules for dividing property will apply to you, and you will have to change your application to follow the new rules.In you separated on or after March 18, 2011 and you have already applied to divide property under the existing rules, you have until March 18, 2013 to resolve your case under the existing rules. After March 18, 2013, the new rules will apply to you.

What does this mean for you?

If you are an unmarried spouse and want to make a claim for a share of property owned by your spouse, you may want to wait until after the new FLA comes into effect.

But, if you are the unmarried spouse who is the property owner, it makes sense for you to resolve your case quickly, before the new law comes into effect, otherwise the new rules will apply to you.

Obviously, these are complicated issues, but one thing is clear: If your common law relationship is ending, or ended recently, you should seek the advice of an experienced family specialist.