B.C. court rules federal Divorce Act is preferred legal basis on issues of relocation and access

The Supreme Court of British Columbia recently ruled the Divorce Act, as federal legislation, should be paramount to the provincial Family Law Act in deciding the mother’s move from Burnaby to Saanich constituted a material change that had an impact on the father’s access time.

The court also ruled that it was in the child’s best interests to reside in the Lower Mainland instead of relocating to Saanich and ordered that the child’s residence be re-established in the Lower Mainland by Dec. 1, 2020.

In T.T. v S.Z.T, 2020 BCSC 1628, the parties were married for around 17 months, lived in Burnaby, B.C. and had a child, N.T., who was born in April 2019. The parties separated in October 2019, at which point they agreed upon the access and parenting time between the father and the child. In late 2019, the mother spent time in Saanich, B.C., where she found a job and a pediatrician for the child.

Last March, the mother stayed in Saanich with the child amid the COVID-19 outbreak. In May, the father filed an urgent application seeking the return of the child to B.C.’s Lower Mainland. A lower court ruled that the mother’s decision to shelter in Saanich was reasonable and did not amount to a decision on her part to relocate to Saanich.

In the present application, the father sought an order from B.C.’s Supreme Court prohibiting changing the child’s residence from the Lower Mainland and increasing his access and parenting time.

The court considered whether the issues relating to the child’s residence and access and parenting should be decided under the Divorce Act, RSC 1985, c 3 (2nd Supp), as contended by the father, or under the Family Law Act, SBC 2011, c 25, as argued by the mother.

The court ruled that the issues should be decided pursuant to the Divorce Act. Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 stated that, when the issue of a child’s mobility is being considered, s. 16 of the Divorce Act is the preferable legal basis because federal legislation is paramount. The court said that the pleadings of both parties engage the application of the Divorce Act for certain purposes, and the father may rely on the Divorce Act in connection with the issues of the child’s custody, access and residence.

The court compared the legislative regimes under the Divorce Act, which addresses the issue of a child’s residence in s. 16(7) and which is supported by the seven-factor framework for analyzing mobility issues under Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, and under the Family Law Act, which addresses the issue of relocation in s. 46 and Division 6 of Part 4 (ss. 65 – 71). The court concluded that there was an operational difference between the two legal regimes. The court ruled that the Divorce Act may be frustrated, so it should govern considering the concerns about paramountcy.

The court then found that the mother’s move from Burnaby to Saanich constituted a material change and a relocation. The change had a material impact on the father’s access time with the child, considering that he could only exercise his parenting time in a motel amid the pandemic.

The court also ruled that it was in the child’s best interests to reside in the Lower Mainland instead of relocating to Saanich and ordered that the child’s residence be re-established in the Lower Mainland by Dec. 1, 2020. The court considered the factors in Gordon to determine the child’s best interests, including the existing custody and access arrangement, the desirability of maximizing the contact between the child and the father, the mother’s reason for moving and the disruption to the child.

The court found it appropriate to increase the access time between the father and the child, but to introduce such modifications in access time gradually, given the child’s young age and the many changes that had already occurred.