| Oct 02, 2013
The Family Law Act says that a joint guardian of a child must give all other guardians at least 60 days' notice in writing before moving with their children. The only real exceptions to this rule are if:
- The other guardian(s) are likely to become abusive or violent as a result of giving notice; or
- The other guardian(s) don't really have a relationship with that child.
The Family Law Act sets out some indication of what to include in this notice - that is, when the moving guardian will be relocating, and where the guardian is going with the child.
As the Act goes, if the other guardian(s) object to the proposed move, they have 30 days from the day they receive notice to file an application to stop the move. Theoretically (more on this later in this post) if they don't object in this timeframe, the moving guardian is free to start packing.
However, the Family Law Act is silent on how this notice is to be given. Is mailing the notice okay? Would registered mail be better? Do you need to hire a process server to hand the notice to the other guardian(s)? Particularly in matters in the Provincial Court and where a party has already filed an address for service, we're all pretty accustomed to service by mail. Is this good enough for a 60-day notice?
Perhaps not. The judgment of Judge R.D. Morgan in the case of S.B. v. N.L., 2013 BCPC 233 clears this issue up, and offers some additional guidance on the content of these 60-day notices. Specifically, at paragraph 25:
...there should also be proof of delivery of the section 66 notice. That proof could, of course, be the admission of receipt by the other party. However, there will be cases, like the one at bar, where receipt of mailed notice is denied. Consequently, it would be a best practice to have the notice served personally. Also, given the high number of self represented persons in Family Court, it would also be a best practice to include in the notice a clear reference to the 30 day time limit to file an objection. In my view, the best scenario would be a requirement in the Family Law Act Rules that the notice be served in an approved form that includes specific reference to the time limit.
I've placed the key bits of that paragraph in bold text. So, Judge R.D. Morgan mentions that not only should you be serving these notices personally, you should also be inserting a provision telling the other guardian(s) that they only have 30 days to object by filing an application to the court to block the move. This provision will hopefully make its way into a standard form in the near future, much like the stock clauses currently present in documents such as the Notice of Family Claim under the BC Supreme Court Family Rules and the standard wording for protection orders. But for now, lawyers and guardians beware - word your 60-day notices with care.
So - what happens if the objecting guardian fails to object within 30 days? Can your client really start packing if they don't hear anything from the non-moving guardian(s)? After all, according to a strict reading of the Family Law Act, one might have assumed that the objecting guardian might be out of luck once 30 days has elapsed:
68 If a child's guardian gives notice under section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation.
However, this is not actually the case - Judge R.D. Morgan makes it clear that, even though the wording of the Family Law Act seems to be a 'bright line', judges will probably continue to have the authority to hear late applications, provided the objecting guardian(s) can provide good reasons for their tardy filing:
 To allow a full hearing of an application to prohibit relocation that was filed after the 30 day time limit, the court will consider the reasonableness of the explanation for the late filing of the objection, the length of delay in filing, and the degree to which the relocating guardian would be prejudiced by allowing the late filed application to be heard. The degree of prejudice will relate to, among other things, the date of the proposed relocation and the planning already undertaken. In the absence of a reasonable explanation, the court should require cogent and compelling evidence indicating relocation is not in the children's best interests. This should be a significant test to meet, and not simply a road bump that would nullify the intent of the legislature.
So, in a nutshell:
- Best practices dictate that the 60-day notices be personally served on all other guardian(s).
- The opposing guardians must file their applications objecting to the move within 30 days of being served. If they don't meet that deadline, the court will consider their explanation for the delay, the length of the delay, and the harm to the moving guardian if the application is heard. In short, your anxiously packing client isn't quite out of the woods after 30 days.
- If the objecting guardian is late in filing and they don't have a reasonable explanation for their tardiness, they will have to meet the difficult test of providing "...clear and cogent evidence that the move is not in the child's best interests." Unless there's good evidence that the move would not benefit the child, the court will permit the move.