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Creative Applications: Using the Family Law Act to try to chase away your child’s date

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio) Published: February 4, 2015

Categorized: Case Analysis, Custody and Access, Family Law, Legislation Analysis, Mobility.
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A recent case, J.Z. v. L.H.C. 2015 BCSC 97, presented an unusual attempt to use the Family Law Act towards purposes that were almost certainly beyond the intention of the drafters of the act.  In that case, the mother of an 18 year old child sued the 22 year old with whom her child was in a romantic relationship.  In British Columbia the age of majority is 19 years old, so there was no question that the 18 year old was a child within the meaning of the Family Law Act.

The mother initially obtained two temporary orders without notice to the 22 year old.  They were an order pursuant to section 64 that the 22 year old was not permitted to “remove” the 18 year old from the Lower Mainland.  The other order was under section 183, which is a protection order, the Family Law Act equivalent of a restraining order.   In this case the 22 year old sought to have those temporary order cancelled.

This is an interesting application of both of those provisions.  Section 64 was intended to deal with mobility situations (which we have previously discussed in some detail).  In short, it was meant to apply to a parent who wants to move the children to a different location on a permanent basis and how another parent could oppose such a move.  In this case, the mother attempted to use it to prevent her 18 year old child from eloping, a situation I cannot imagine was contemplated by the drafters of the act.  In the decision, Master MacNaughton found that the wording of the Act could apply to this type of situation, but that it would be inappropriate to apply to the particular facts in this case.

With respect to the protection order under section 183, normally if a person requires such an order outside of the family context, the usual approach is to go to the police.  In this instance Master MAcNaughton found that the section only applied to “family members” and that the 22 year old was not a family member because the 18 year old and the 22 year old were not living together in a marriage like relationship.

While both of these orders were ultimately cancelled, with slightly different facts they very well could have been viable claims, this despite the near certainty that the drafter’s of the act had not contemplated the act be used by parents to get court orders against the romantic relationships of “children” that are old enough to vote.  It will be interesting to see what other creative interpretations of the Act arise over time.

Author: Joe Broadhurst

 

 

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