April 30, 2019

Review: Fotsch v. Begin, 2015 BCCA 403

Fotsch v. Begin 2015 BCAA 403

B.C. Court of Appeal ruled trial judge did not err in deciding on Germany move.

In a recent case, Fotsch v. Begin, 2015 BCCA 403, the B.C. Court of Appeal has ruled that a trial judge did not err in deciding that a German mother should be permitted to move with her three year old child to Germany despite opposition from the Canadian father.

In this case, which was decided under the Family Law Act, the Court of Appeal thoroughly reviewed the relocation provisions of the Act and set out clear parameters as to how those provisions should be applied.

The court determined that the trial judge had correctly applied the relocation provisions of the FLA and had, in light of those provisions, properly concluded that the mother had produced solid and persuasive evidence to show that:

  • a. the proposed relocation by the mother was made in good faith;
  • b. the mother had put forward reasonable and workable arrangements to preserve the relationship between the father and the child if the relocation was permitted; and
  • c. the proposed relocation was in the best interests of the child.

The court noted, with respect to good faith, that there was no evidence whatsoever produced at trial to indicate that the mother’s wish to relocate was based on an improper motive. They pointed to the fact that the trial judge had found that the evidence showed that the father had actually agreed that the mother could remain in or relocate to Germany in the event that the marriage ended, that the evidence also clearly indicated that life in Germany would be much more stable and secure for the child than life in British Columbia and that the evidence revealed that the father could move to and live in Germany in order to promote and maintain his relationship with the child.

the mother had produced evidence to show that her situation, and that of the child, would be much better economically in Germany

In addition the court found that the trial judge had correctly determined that the mother’s proposals for maintaining the father’s relationship with the child, which involved extensive Skype and holiday time with the child, as well as generous parenting time with the child in Germany, if he remained in Canada and a full co-parenting relationship if he moved to Germany, were reasonable and workable. Finally the court ruled that the trial judge had properly concluded that the mother had produced irrefutable evidence to show that the relocation to Germany was in the child’s best interests. In particular, the mother had produced evidence to show that her situation, and that of the child, would be much better economically in Germany, and that a much better family support system was available for her and the child in Germany.

THE BRIEF

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