Thank you so much for your question. I'm happy to respond to that.
In Manitoba, we formed a committee that I chaired, proposing changes to relocation. Bill 33 was the result. Unfortunately, it died on the order paper. Actually, I believe the sections are attached at schedule 1 to my submission. If you read that, you'll see that it's part of the paper that we had done some time ago.
On that committee was Professor Nick Bala, who I think is addressing you next week. We consulted with Rollie—Professor Thompson—extensively. We had a judge advising us. We had practitioners and governmental people, who we just assembled and put together.
Let me tell you what Manitoba did at the time.
We wanted certainty, and we didn't want to promote any litigation at the front end. The worry is that, if you're using terms like the terms that are used in the bill, people are going to fight for the vast majority of time, or whatever the term is, at the front end. In Manitoba, we asked, “Why don't we look at what adequate parenting parents get, in fact, in terms of time-sharing?” The key, again, looking at it from the perspective of the child, is that if I have a close attachment as a child to this other parent, the left-behind parent, is it in my best interests to have that relationship severed?
Because no matter what you say, and no matter what is said by anybody, the reality is that when that kid goes, the left-behind parent becomes like an uncle and is no longer a parent. That attachment is really broken—or changed. I can say “changed”—and I think everyone would agree with that—and lessened. In Manitoba, we said that the rebuttable onus is on the relocating parent to prove that relocation is in the best interests of the child if the other parent has at least one-third of the overnights over the course of the year. We defined it by overnights.
I shouldn't say “we”. It was the government. We recommended it but they did it. We defined it as one-third of the overnights so that you'd have certainty, because mere adequate parenting, they're going to get that anyway in terms of the course of the year in Manitoba, assuming that we're not talking about a baby or a child where they're assuming adequacy. Those assumptions are built in.
Also, of course, we respected the Convention on the Rights of the Child, because we took into account and said what the child's view might be, and of course we took into account where a parent has complied with a court order.
I will note as well—I didn't have a chance to mention it—that this bill talks about substantial compliance with court orders. That is an enormous mistake, in my view. There has to be compliance with court orders, not “substantial”—whatever that means—compliance with court orders. I don't want to have to fight when someone removes a child: “Was that substantial or insubstantial or what was that?” Predictability and certainty....
Anyway, we did that. The onus would have shifted to the other parent if they had less than one-fifth of the overnights over the course of the year because, again, adequate parents are going to get that in the normal course. You're not going to be encouraging fighting. That's what the proposal was in Manitoba.
In Nova Scotia, they have guidelines, which I would say is second best. I think Manitoba's was best. Rollie and I went back and forth, and Professor Bala was in favour of our view, as he may speak to in due course.
As I say, in Nova Scotia they had a sort of shopping list of issues to consider. That's a good approach to do, too, with terms that we know, terms that are established. It gives guidance to the court. That has worked reasonably well.
B.C. is problematic, I say with respect, in a number of issues. It's been criticized quite a bit by people who write on the point. I can go through that if you want. It's attached as well to my submission, if you like. Essentially, where you look at an application under the section and the relocating parent—or guardian, I should say—doesn't have substantially equal time, the relocating guardian has to satisfy the court that the relocation is made in good faith and that there are reasonable and workable arrangements to preserve the relationship.
You can't do that in moving from B.C. to England or wherever you're going to move to—Winnipeg or whatever it might be—but that's what they had to show. If the court is satisfied, then the presumption is that it's in the best interests to move. The fundamental principle at the end of the day, and what the basic philosophy is as I've said, is that where there's a close, healthy attachment with a parent who isn't leaving, don't sever that unless there are darn good reasons to do that—and sometimes there are.
The onus should be on the person to show that is the case, in my submission.