Variation Applications and Mobility Issues
With respect to interim orders regarding custody and access, the courts generally do not entertain further applications pending trial once an interim order has been made. This is because the court generally wants to maintain stability for the children and integrity in the court process in terms of avoiding multiple applications when the proper courses is for the matter to be set to trial for a final order. Exceptions can occur, however, where a trial is a long way off and something significant has occurred in the parties’ situation. Examples can involve one party no longer being able to look after the children in the same way due to illness, a change in their employment or a requirement to move, that cannot await trial. Generally these will be matters that were not foreseen at the time the original interim order was made. However, unlike variation of a final order a material change in circumstances is not required to vary an interim order under the Divorce Act (Canada). However under the Family Law Act a change in circumstances has to have occurred.
Once a final Order is made it can be varied under the Divorce Act (Canada) upon what is known as a material change in circumstances. This is a fact or circumstance or group of them had it existed at the time the prior order was made would have resulted in a different order. Under the Family Law Act the court can change a final Order on a change in circumstances. The test is essentially the same as under the Divorce Act (Canada).
Quite often one parent has to move for employment or other reasons. Once the need for the move is established the custody/guardianship, parenting time/access orders will be reviewed afresh looking at all the factors on a best interest test. The court will look at two scenarios for the child being what would happen if the remaining parent had guardianship and the other parent access or what would occur if the child moved with the moving parent and the remaining parent had access. As well the parents’ reason for moving is considered in terms of it being in good faith.
Under the Family Law Act there are additional hurdles to a move. Firstly the moving parent must provide 60 days notice of the proposed move to those who have contact and guardianship along with the name of where they are moving unless the court orders otherwise. Then if another guardian does not file an application objecting to the move within 30 days the move will be granted. If the application is filed and the relocating guardian who has the child substantially more of the time establishes the move is in good faith and they have made reasonable arrangements to continue the relationship of the child with contact people and remaining guardians then the move is granted unless a remaining guardian in British Columbia proves it is not in the Child’s best interest.
Under the Family Law Act if the two guardians have substantially the same parenting time then the relocating guardian has to establish the child moving with them is in the child’s best interest.
In determining good faith the court under the Family Law Act or Divorce Act (Canada) will consider the reason for the move, whether the 60day notice is given, whether the financial and other opportunities for the child and moving guardian are enhanced by the move and any existing court order or agreement related to the issue. These are the same as the common-law case law under the Divorce Act (Canada). Under the Family Law Act the court can’t consider if the parent will move without the child.
Parenting Co-ordinators
The Family Law Act allows for guardians to agree or the court to order that a qualified professional be appointed to assist guardians in implementing aspects of their parenting plan and making agreed to or ordered decisions about the plan. The agreement or order is generally limited to two years and the decisions of the co-ordinator are binding unless a guardian can establish the decision did not consider material evidence or fails to apply the law. Care should be taken on agreeing to such a process as often co-ordinators are busy and hard to see in a timely way and once they make a decision you may likely be stuck with one you don’t agree with, with limited court review. On the other hand for people with limited resources and communication issues the co-ordinator approach can be an efficient way to resolve parenting issues.
Parenting Sanctions-Conduct Orders
Under the traditional family law if someone did not obey a court order for access and custody there were limited remedies to punish for contempt of court. Under the Family Law Act on determining a breach of a court order, the court can now more easily address corrective action. Orders can include but are not limited to orders of make up periods of parenting, order that costs for missed access be paid (travel costs, lost wages, daycare etc.), by the offending parent or party, a $5000.00 compensation payment to the child or anyone effected by the mis-conduct, or up to a $5000.00 fine to be paid by the offending party. Counseling and dispute resolution alternatives like mediation can also be ordered at any time by the court.