Moving with Your Child from BC: Relocation Rules

Which law applies to your move

There are two relocation regimes in British Columbia, and the first thing to work out is which one governs your family.

• The provincial Family Law Act applies where your parenting arrangements come from an FLA agreement or order and there is no divorce proceeding, which covers unmarried spouses and married spouses who have not started a divorce. Relocation is dealt with in Part 4, Division 6 (sections 65 to 71). Under section 65, a "relocation" is a change in the location of a child's or guardian's residence that can reasonably be expected to have a significant impact on the child's relationship with a guardian or another significant person.
• The federal Divorce Act applies where the parenting arrangements are made in a divorce proceeding or under a Divorce Act parenting order. Its relocation rules are in sections 16.9 to 16.96. Our post on Bill C-78 and the amended Divorce Act explains that regime in more detail.

Both regimes use a 60-day notice period and a 30-day window to object, but the contents of the notice and the way an objection is made are not the same. Under the Family Law Act, the only way to object is to file a court application within 30 days (section 68). Nothing short of a filed application stops the move. Under the Divorce Act, a person entitled to notice may object either by setting out the objection in the form prescribed by the regulations or by applying to the court, within 30 days of receiving the notice (section 16.91(1)(b)(i)). Do not assume an objection made one way counts under the other regime. The steps below are the Family Law Act process. Legal advice before you give notice is worth far more than legal advice after.

The steps under the Family Law Act

1. Give written notice of the proposed relocation, at least 60 days before the planned move, to every other guardian of the child and to every person who has contact with the child. Under section 66, the notice must set out (a) the date of the relocation, and (b) the name of the proposed location. That is a shorter list than the federal one: a notice under Divorce Act s.16.9(2) must also give the address of the new residence and contact information, and include a proposal for how parenting time, decision-making responsibility or contact could be exercised. If your matter is a divorce proceeding, use the federal form and contents, not the shorter FLA list. On application, a court can exempt a guardian from all or part of the notice requirement, but only on the two grounds in section 66(2): that notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or that there is no ongoing relationship between the child and that other guardian or contact person.

2. Wait for a response. Under section 68, another guardian who objects must file an application for an order prohibiting the relocation within 30 days after receiving the notice. If no such application is filed within that window, the relocation may occur on or after the date set out in the notice. Note the distinction the Act draws here: a person who merely has contact with the child, rather than guardianship, does not have the same ability to block a move by filing an objection under this section.

3. If there is an objection, the relocation cannot go ahead unless the court permits it, and the application is decided under section 69.

4. The court decides on the child's best interests, and section 69 places the onus on the relocating guardian. That guardian must satisfy the court that the proposed move is made in good faith and that reasonable arrangements have been proposed to preserve the child's relationship with the other guardians and other significant people in the child's life. Where the guardians do not have substantially equal parenting time and the relocating guardian establishes those two things, section 69(4)(b) provides that the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise, so the burden then shifts to the guardian who is objecting. Where the guardians do have substantially equal parenting time, section 69(5) requires the relocating guardian to satisfy the court of both those factors and that the relocation is in the child's best interests. In either case, section 69(7) bars the court from considering whether the guardian would still relocate if the child's relocation were not permitted.

5. The court will make an order allowing or denying the relocation.

6. Once the court order is made, the relocating guardian must comply with it, providing current contact information and putting the revised parenting time and contact arrangements into effect.

What happens if you move without giving notice

The court can order the child's return, or change the current parenting arrangements in favour of the other parent. Notice matters to the other guardian whether or not they are closely involved in the child's day-to-day life.

Relocation applications turn on the specific facts of your family, and the deadlines are short. Speak with a family lawyer at SiLaw Group before you give notice or respond to one, and we can talk through whether relocation is realistic in your situation. Book a free consultation about child relocation or call our Surrey office.