BC Court of Appeal orders father to return child he relocated without court approval

Any change in child’s residence that would significantly impact their relationship with one of their parents is considered “relocation” under the law, the British Columbia Court of Appeal has ruled.

The dispute in R.P. v. G.U., 2022 BCCA 255 stemmed from a father’s alleged act of “relocating” with his nine-year-old son to Victoria, which the mother opposed. The parties were married in 2010 and resided in White Rock, BC. They separated in 2016, with their parenting time fluctuating between them.

In 2017, the mother began to experience mental health issues, which resulted in the father exercising the majority of parenting time. The father grew concerned over the mother’s mental health condition., so in 2019 they entered into a settlement through mediation. They agreed to have joint guardianship over the child and he would reside primarily with the father, while the mother would have eight hours of unsupervised parenting time in White Rock or Surrey, and six hours if it was exercised elsewhere.

However, in 2020, the mother’s mental health deteriorated, so the father stopped her parenting time. The father sent a notice of relocation to the mother, advising that he would be relocating with the child to Victoria. The mother sought for a court order prohibiting the father from relocating with the child.

Despite a pending hearing over the proposed relocation, the father moved with the child to Victoria. The father argued that he did not consider the move from White Rock to Victoria to be a relocation, as the relationship between the mother and their child would not be affected. He further claimed that the move to Victoria was meant to be temporary and that he had leased a house on a month-to-month basis. He also contended that his mother, who lived in Victoria, could provide childcare and be of assistance to him. His move would also allow him to have more time to work and maintain romantic relationships. The father sought a declaration from the court that his move to Victoria was not a relocation and an order that he would solely exercise all parental responsibilities.

The mother, on the other hand, sought an order from the court that the relocation be prohibited and that there be a shared parenting regime between the parties.

Move to Victoria was relocation

The trial judge determined that the move to Victoria was a “relocation” within the meaning of the Family Law Act because it resulted in a significant impact on the child’s relationship with his mother. Under the law, any change in the residence of a child that can be reasonably be expected to have a significant impact on their relationship with a parent or guardian is considered a relocation.

The judge took judicial notice of the five-hour travel time between Vancouver and Victoria, which would also involve a significant financial cost. The judge said the time and expense needed for the mother to exercise weekly parenting time, as agreed in the parties’ settlement, would be “extraordinary, unreasonable, and have a significant impact” on her relationship with the child.

The judge also found that the relocation had not been made in good faith because the father’s motives for moving to Victoria were based on his own interests rather than those of his son. Finally, the judge concluded that the relocation was not in the best interests of the child, considering that the mother had made progress with her mental health. The judge ordered the father to move back to the lower mainland near White Rock.

Move wasn’t temporary: Court of Appeal

The father appealed the judge’s decision, arguing that the judge made an error in finding that a relocation had occurred and in deciding that he had not acted in good faith. The appeal court, however, agreed with the trial judge’s findings. The court noted that the move had been in effect for more than one year and the child had even attended school in Victoria. As a result, the court concluded that the move was clearly no longer temporary. 

In addition, while the appeal court acknowledged that the father may have had valid reasons to relocate to Victoria with the child, including the onset of the pandemic and the mother’s deteriorating mental health, the appeal court failed to see how these factors sufficiently justified relocating in the face of the mother’s opposition and without court approval. In the end, the appeal court affirmed the trial judge’s order that the father move back to the lower mainland.