Background of the Case

The parties in this case, Michael Erick Gamble (the Appellant) and Jessica Lynn Neale (the Respondent), were involved in a dispute over the primary residence of their child, Bristen Gamble. Following their separation, Bristen primarily resided with Mr. Gamble in Kamloops, British Columbia, as per a previous court order. Ms. Neale later moved to Merritt, British Columbia, and sought to change the primary residence of their child to her new location.

The Order and Reasons of the Application Judge

The application judge granted Ms. Neale’s request to change the primary residence of the child to Merritt. Mr. Gamble appealed this decision, arguing that the judge failed to apply the relocation provisions of the FLA and made several errors in assessing child support and the best interests of the child.

Grounds of Appeal

Mr. Gamble’s appeal was based on several grounds, including:

1. The application judge erred by not applying the relocation provisions of the FLA.
2.  The judge improperly treated Mr. Gamble’s pension payout as income for support purposes.
3. Errors were made in calculating child support arrears.
4. The failure to require child support payments in July and August 2024.

Did the Application Judge Err in Not Applying the Relocation Provisions of the FLA?

The Court’s Analysis

The central issue in this appeal was whether the application judge should have applied the relocation provisions of the FLA. Under Division 6 of Part 4 of the FLA, specific rules govern relocation, which includes a significant impact on a child’s relationships.

Distinguishing from Relocation Cases

The application judge found that this case did not involve a relocation within the meaning of the FLA. Instead, it was a dispute over which parent the child should primarily reside with. The court distinguished this case from relocation cases by noting that:

• The primary issue was the change in primary residence rather than a parent relocating with the child to a significantly different location.
• Ms. Neale had already moved to Merritt, and the application was about changing the child’s primary residence to Merritt.

The application judge referred to the case K.W. v. L.H., 2018 BCCA 204, which supports the distinction between a change in primary residence and a relocation. In K.W., the court emphasized that relocation provisions apply when a parent with primary residence seeks to move to a new location, impacting the child’s relationships significantly. This distinction was critical in deciding that the relocation provisions did not apply to Gamble v. Neale.

Supporting Case Law

Mr. Gamble’s counsel cited several cases, including McNaught v. Friedman, 2013 BCSC 1836, and Berry v. Berry, 2013 BCSC 1095, to argue that moving the child from Kamloops to Merritt constituted a relocation. However, the court found these cases factually distinct, emphasizing that the impact on the child’s relationships must be significant to qualify as a relocation under the FLA.

The Court’s Conclusion

The court concluded that the application judge did not err in failing to apply the relocation provisions of the FLA. The judge conducted a thorough child-centered analysis, focusing on the best interests of the child, including the child’s relationships and the potential impact of living in Merritt rather than Kamloops.

Conclusion and Implications for Future Cases

The decision in Gamble v. Neale underscores the importance of distinguishing between changes in primary residence and relocation under the FLA. The case highlights that not every move qualifies as a relocation and that the specific facts and impacts on the child’s relationships are crucial in determining the applicable legal provisions.

For those involved in family law disputes, this case emphasizes the need for thorough legal analysis and clear understanding of the distinctions in family law provisions.

For individuals experiencing a similar situation, you may want to consider renegotiating parenting time through mediation. If you are self-representing, for further information, read Family Law Mediation and Self-Represented Litigants.

Need help with family law? Check out Maio Law for more information.