Where is B.C. Law Going? The New Mobility
30 Canadian Family Law Quarterly 235, 2011
35 Pages Posted: 21 Aug 2012
Date Written: 2011
British Columbia has often been Canada's social laboratory for new ideas, and not always in a good way. But the rest of us, from the other side of the Rockies, watch with interest and occasionally amazement, as B.C. tries something new. That's certainly true about the law of mobility or parental relocation. First, as part of its White Paper and now Bill 16, British Columbia has become the first Canadian jurisdiction to enact specific legislative provisions concerning relocation. Second, in a spate of recent appeals, the B.C. Court of Appeal has become hyperactive in relocation cases, overturning three of four trial decisions and propounding new mobility principles of their own. Third, B.C. has more trial-level relocation decisions than any other Canadian jurisdiction, offering an opportunity to compare and contrast B.C. outcomes with those from other Canadian jurisdictions.
It would be good if B.C. were to be a social laboratory on relocation, as we will not get any help at the national level. Since 1996, since Gordon v. Goertz, the Supreme Court of Canada has refused leave to appeal in 13 relocation cases, including the controversial B.C. decision of Karpodinis v. Kantas. It appears unlikely that we will receive any further guidance from the Supreme Court of Canada. Nor will any help come from the federal government, as there has been no recent move to amend the custody or relocation provisions of the Divorce Act. The last attempt to do so was Bill C-22, introduced by the Liberal government in December 2002 and left to die on the order paper in November 2003.
In this article, I propose to take a close look at "what's goin' on" in British Columbia, to quote Marvin Gaye. First, I will look at the B.C. trial decisions from the past two years, from March 2009 to October 2011, to ascertain patterns and trends in relocation decisions. Second will be a close analysis of the recent Court of Appeal decisions, and their implications for the conduct of relocation cases. For both levels of court, I will compare and contrast the B.C. experience to that in other Canadian jurisdictions. The trial and appeal decisions are listed in the Appendix. Third, I want to take a brief digression into child support and sharing of travel expenses in relocation cases, sparked by the recent Court of Appeal decision in Greene. Fourth will be a critical analysis of the Bill 16 legislation provisions on relocation. When proclaimed, will these provisions make a difference?
Keywords: relocation, family law, British Columbia, Court of Appeal, Bill 16, Bill C-22, Karpodinis v. Kantas, custody, Divorce Act, child support
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