Relocation: To move or not to move, that is the question Donna Y. Yamazaki Watson Goepel LLP November 9, 2012 The New Family Law Act: Watson Goepel LLP – Business Law Group Meeting

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

FAMILY LAW ACT Division 6 of the FLA specifically addresses relocation where there are parenting arrangements (by agreement or order) already in place. New provisions provide a framework for the courts and for parties to work within, but it may not diminish litigation in this area.

CERTAINTY The goal is to introduce greater 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 should take into consideration. Providing directions about what the court should take into consideration.

RELOCATION Relocation is defined in s. 65(1) as: A change in the location of the residence of a child or childs guardian that can reasonably be expected to have a significant impact on the childs relationship with a guardian, or one or more other persons having a significant role in the childs life.

NOTICE A childs guardian who plans to relocate, with or without the child, must give written 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 proposed move. Notice must be given to: All other guardians. All other guardians. Persons having contact with the child. Persons having contact with the child.

NOTICE EXEMPTIONS Where notice cannot be given without incurring a risk of family violence. Where there is no ongoing relationship between the child and the other guardians or the person having contact with the child.

PURPOSE OF NOTICE Provides the parties an opportunity to discuss the proposed move. If a relocation is agreed on, to work out a new parenting arrangement. Provides time for a guardian to file an application if they oppose the move.

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

OBJECTING TO THE MOVE Once notice is given by a guardian, the relocation may occur on or after the date set out in the notice unless another guardian, within 30 days after receiving the notice, files an application prohibiting the relocation. Eliminates the need for a moving guardian to wait the entire 60 days before planning the move if another guardian does not object.

SECTION 69: THE FACTORS Section 69 outlines the factors to permit or prohibit a proposed relocation. Where the childs guardians do not have substantially equal parenting time, the guardian wishing to relocate must satisfy the court: Reasonable arrangements have been proposed to preserve the childs relationship with the other guardians, persons with contact, and persons with significant roles in the childs life. Reasonable arrangements have been proposed to preserve the childs relationship with the other guardians, persons with contact, and persons with significant roles in the childs life. Relocation is made in good faith. Relocation is made in good faith. If the court is satisfied these factors are met, the move is presumed to be in the best interests of the child. If the court is satisfied these factors are met, the move is presumed to be in the best interests of the child. Where the childs guardians have substantially equal parenting time with the child, the relocating guardian must satisfy the court of the above factors and that the relocation is in the best interests of the child.

GOOD FAITH This provision is included to prevent relocation from occurring where the underlying reason is to undermine or limit the childs relationship with the other guardian. In determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including: Reasons for the proposed relocation. Reasons for the proposed relocation. Whether the proposed relocation is likely to enhance the quality of life of the child, including increasing emotional well-being or financial or educational opportunities. Whether the proposed relocation is likely to enhance the quality of life of the child, including increasing emotional 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 agreement or order. Any restrictions on relocation contained in a written agreement or order.

IF RELOCATION PERMITTED When an order is made allowing a guardian to relocate that affects an order or agreement for parenting arrangements, the court may: Make or vary an order for parenting arrangements. Make or vary an order for parenting arrangements. Goal is to preserve, to the extent possible, the parenting arrangements in the original agreement or order. Goal is to preserve, to the extent possible, the parenting arrangements in the original agreement or order. Make orders to ensure compliance by the relocating guardian such as security in any form the court directs; and/or transfer specific property to a trustee named by the court. Make orders to ensure compliance by the relocating guardian such as security in any form the court directs; and/or transfer specific property to a trustee named by the court.

CONCERNS FOR THE FUTURE FLA provides a framework but does not necessarily decrease litigation. Emphasis is on parents wanting substantially equal parenting time at the outset despite the status quo. Ongoing judicial discretion decreases certainty.