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Legal Ease
Legal Ease, Lawyer
Category: Canada Family Law
Satisfied Customers: 100483
Experience:  I am a practicing lawyer and have also been an online professional for 5 years.
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My girlfriend recently relocated to a new community with her

Customer Question

My girlfriend recently relocated to a new community with her two children, sons aged 7 and 14 (turning 15 in one month). The new community is one hour driving time from her old community. She has been the primary caregiver of both her sons for the past two years. A few days after she moved, her ex got a court order to have her children returned to her original community. The judge ordered that children be returned but that my GF has the choice to return or to stay resident in the new community, in which case her time with the children would be reduced significantly because the kids would return to school in their old community and correspondingly spend most of their time with her ex. Her oldest son, who is one month away from turning 15 years of age, does not wish to return to his old community and wishes to remain living in the new community for school, activities, etc. My GF is weighing the pros and cons of returning to old community or staying in new community and is leaning towards staying resident in the new community IF her 14 year old son is legally able to stay there with her (her ex would still have the 14 year old son on one or two of the weekend days, which is the same arrangement my GF and her ex had with the 14 year old son before the move). Neither the courts nor my GF's lawyer have been able to provide any guidance on the older child's rights and options around facilitating his desire to stay in new community with mom (my GF). There has been talk that if the child were to just tell his dad (the ex) of his desires to move back to new community and the ex denies his request, he could demonstrate his wishes by 'running away' to the new community on his own, and that doing this a couple of times would demonstrate his clear desire to move/stay in new community. This is in British Columbia. What steps can my GF's 14 (almost 15) year old son do to have his wishes legally fulfilled to reside in the new community? Thank you.
Submitted: 1 year ago.
Category: Canada Family Law
Expert:  Legal Ease replied 1 year ago.

When are they back in court? Has a date been set yet?

Wasn't this order just an interim order?

Customer: replied 1 year ago.
They go to court for full divorce proceedings in late November. My GF is not interested in returning to old community even for a short period, as she has bad memories in both the town and the matrimonial house due to various abuse from her ex. She moved to new community for improved life for her boys and her career, and a "fresh start". The older son has no interest in returning to old community. Despite submitting a 70 page affidavit to explain her actions, the residing judge based her decision solely on the fact that the boys were 'displaced from their community of birth and upbringing', and said that all other evidence would be reviewed at the actual trial dates. The boys just started school in new community (2 weeks in) and will now be required to go to school in old community again. The court order was clear in that my GF has the choice of staying in new community or returning to old community. If she returns to old community she retains majority parenting time with her sons (5 days/week for younger son, 5 to 6 days/week older son). If she stays in new community she gets "generous parenting time" with both sons but not majority, as the kids will be in school in old community which by default means ex will get them majority of time. The key issue we are wanting guidance on is around the almost-15 year old son, who wishes to reside in new community, and how he can voice his desires and will be heard effectively and legally.
Expert:  Legal Ease replied 1 year ago.

There is no way to enforce an order against a 15 year old. The police are not going to try and force him to go back to the father. They will check on him to make sure he is safe and that is all.

It is odd for a court to make a decision against the wishes of a child of that age and I suspect his wishes were not considered because of the way the mother conducted herself. It was not permissible for her to move the children and so there has not been a full and fair hearing yet.

So if the child comes to the mother's home he is effectively voting with his feet.

It has to come from him and this must be very clear or the mother can be found in contempt.

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