Moving Away after Separation

Change, and how adapt to change, are facts of life in the twenty-first century. Some changes are small, like getting a new haircut or buying a new phone; others, like changing jobs or starting a new relationship, are much more significant. One of the ways family law has changed, particularly over the last twenty years or so, has been the number of cases about parents who want to move, with or without the children, after their relationship with the other parent has ended. Cases involving parents who want to move were once relatively rare; now, it seems that every other case involves an issue about moving.

Moves are necessary, of course, when the family home sells and one or both parents have to find new places to live. Other moves are prompted by the benefits to the children of going to a new school in a new town, a parent's wish to pursue a new relationship or a new career opportunity, or a parent's need to get help caring for the kids from friends and family who live somewhere else. Like other life changes, moves can be minor and relatively unimportant, like moving to a different neighbourhood in the same city. They can also be enormously consequential, like moving to a new city, a new province or a new country.

It's easy to understand why parents rarely agree when one of them wants to move. Even a small move can upset an established pattern of parenting time and require the children to change schools and extracurricular activities. Larger moves will certainly upset whatever arrangements are in place for parenting time and, where the children's time with a parent is cut back as a result, can have a profound impact on the quality of the relationship between the children and the parent who didn't move.

This section talks about small moves and large moves after separation, and the rules about moving in the Divorce Act and the Family Law Act. Because moves can be so important — including when they're not permitted, just as much as when they are! — if you or another parent are thinking about moving away, you really should speak to a family law lawyer and get advice about how the law applies to you in your specific circumstances.

Introduction

A parent who wants to move away from the other parent after separation must have the other parent's permission to move or a court order allowing the move. Common reasons for moving include:

• the parent has a new employment opportunity elsewhere,
• the parent is in a new relationship with someone from out of town and wants to live with them or closer to them,
• the parent wants to be closer to a support network of family and friends who live elsewhere,
• there is a unique educational opportunity elsewhere, for either the parent or the children, or
• there is an important medical or therapeutic opportunity elsewhere, for either the parent or the children.

Normally, the other parent doesn't want the children to move since the move could impact their ability to see the children as frequently as they do, and could harm the children's relationship with them as a result. This is especially true when a parent wants to move to another province or another country. Even within British Columbia, a relatively short move from Richmond to Chilliwack, for example, can make it impossible to continue the parenting time schedule that was in place before the move. Moves can also impact the children's relationships with other people, including their relationships with family members, friends, schoolmates and people who have contact with them.

Moving away without the other parent's permission, or a court order allowing the move, is another problem altogether. Depending on the circumstances, moving away without permission or a court order could qualify as child abduction, a serious criminal offence under sections 281, 282 and 283 of the federal Criminal Code. It might also result in the court making an order requiring the children to be returned to the other parent right away.

The federal Divorce Act and the provincial Family Law Act both talk about moving after separation in terms of moves that fit within their definitions of "relocation" and moves that do not, and are instead "changes in the place of residence" of a child. (Lawyers also refer to claims about moving as "mobility cases," but in this section, we'll stick with the language used in the legislation.) The rules about relocation apply when a parent wants to move with the children as well as when a parent wants to move without the children.

The Family Law Act has talked about moving after separation since the act came into effect in 2013. The Divorce Act has only talked about moving since it was overhauled in 2021. Unfortunately, while both statutes use some of the same terminology and some of the same tests, they're different enough that you can't assume the rules in one statute are similar to the rules in the other. As a result, in this section we'll talk about the rules in the Divorce Act first and then move on to the rules in the Family Law Act.

It's important to know that the Divorce Act only applies to people who are or were married to each other. The Family Law Act, on the other hand, applies to everyone, including married spouses. While married spouses sometimes have a choice about whether they want the Divorce Act or the Family Law Act to apply to their legal problems, they'll be stuck with the Divorce Act if:

• a court proceeding asking for parenting orders under the Divorce Act is already underway, or
• parenting orders under the Divorce Act have already been made.

If you're not married to the other parent, then it's the rules under the Family Law Act that apply.

Moves under the Divorce Act

Section 2(1) of the federal Divorce Act defines "relocation" in terms of the impact that a move may have on the children's relationships with other people:

relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with

(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or

(b) a person who has contact with the child under a contact order;

(A "child of the marriage" is a person under the age of majority, age 19 in British Columbia, who is the child of one or both spouses.)

This definition covers moves by people who have an order under the Divorce Act giving them decision-making responsibility or parenting time with a child, whether they want to take the children with them or not. It also covers moves by people who are making an application for an order about decision-making responsibility or parenting time under the Divorce Act. It doesn't cover people who have an agreement giving them decision-making responsibility or parenting time. Moves by people who have an agreement about decision-making responsibility or parenting time are dealt with under the provincial Family Law Act.

As you can probably guess, the key part of this definition is whether a proposed move is "likely to have a significant impact on the child’s relationship" with the specific people it identifies; not just anyone, but only people with parenting time, people with decision-making responsibility, people who have filed an application for parenting time or decision-making responsibility, and people with contact. If a move is going to have a "significant impact" on the child’s relationship with these people, then the move qualifies as a "relocation," and there are different rules about moves that are relocations and moves that are not relocations. So, how do you know whether the impact caused by a move is likely to be "significant" or not?

Unfortunately, there are only a handful of cases that deal with relocation under the updated Divorce Act and the meaning of "significant impact." The good news is that the definition of "relocation" under the Family Law Act also uses the term "significant impact," and the cases that talk about "significant impact" under the Family Law Act can be used to understand "significant impact" under the Divorce Act. Here, for example, is what the court had to say about "significant impact" in a 2022 case from the Saskatchewan Court of Appeal, D.T.D. v T.A.J.:

[46] ... As the courts in British Columbia have held, a child’s best interests are part and parcel of the more fundamental question of whether the proposed move is a relocation. As the Court said in Berry, the relocation analysis examines whether the effect of the move will have a significant impact on the child’s relationship with the other parent: “The use of the qualification ‘significant’, acknowledges that there will be some impact from a move but limits the courts involvement to those moves which will have a significant impact on relationships. The focus is on the best interests of the children."

[47] What this means is that, in assessing the root question of whether the proposed move will have a significant impact on the child’s relationship with the non-moving parent, a court must take into account more than just the commuting distance between residences. A contextual analysis is called for that would include considerations such as the following:

(a) whether and how the move would change the amount and frequency of parenting time for the non-moving parent;

(b) whether and how the move would affect the degree of involvement of the non-moving parent in the child’s activities, schooling and so forth;

(c) whether the moving parent is willing to bear the burden of any increase in the commuting time;

(d) how the distance or commuting time between the two residences would affect the quality of the child’s relationship with the non-moving parent; and

(e) whether the non-moving parent has the ability – financial or otherwise – to commute to and from the child’s proposed new place of residence or an intermediate location.

[48] Of course, the above is not an exhaustive list, and the factors are not prioritized in any way. The facts of each case will vary. Much will depend on the parenting order in place, the age of the children, the scope of parental involvement (e.g., shared parenting), etc.

(The "Berry" case referred to by the Saskatchewan court is a 2013 case from our Supreme Court, Berry v Berry, involving a move from Surrey to North Vancouver.)

Moves that are not relocations

Section 16.8 of the Divorce Act deals with changes in the residence of a person with decision-making responsibility or parenting time — whether they plan on taking the children with them or not — that do not qualify as "relocations" under the definition in section 2(1). In other words, it deals with moves that are not likely to have a "significant impact" on the children's relationships with:

• the person who wants to move,
• another person who has decision-making responsibility or parenting time, or
• a person who has contact with the child.

Under section 16.8(1), a person who plans to make a move like this must give notice about their plans to anyone else who has decision-making responsibility, parenting time or contact with the children. Under section 16.8(2), the notice must state:

• the date of the proposed move, and
• the address of their new home, their new contact information, and any new contact information for the children.

If the person who plans to move doesn't want to give notice, perhaps because of concerns about things like family violence, they can apply to court for an exemption under section 16.8(3), and they don't have to notify anyone else of their application for the exemption the way the Rules of Court normally require.

Moves that are relocations

Sections 16.9 to 16.96 of the Divorce Act deal with moves that do qualify as "relocations" under the definition in section 2(1). In other words, they deal with moves that are likely to have a "significant impact" on the children's relationships with:

• the person who wants to move,
• another person who has decision-making responsibility or parenting time, or
• a person who has contact with the child.

(Don't worry, there aren't really 87 sections about relocation in the new Divorce Act. When a statute is changed to add a new section in the middle of the statute instead of at the end, rather than renumbering everything the new section is numbered with a decimal point. The old Divorce Act was numbered sequentially, with section 17 following section 16, section 16 following section 15, and so on. When the new sections were added between sections 16 and 17 of the old act, they were numbered 16.1, 16.2, all the way through to 16.9. And when more sections needed to be added after section 16.9, they were numbered 16.91, 16.92 and so on. As a result, there's just seven sections that deal with relocation.)

Notice of a proposed move

If a person with parenting time or decision-making responsibility wants to relocate, section 16.9(1) of the Divorce Act says that they must notify anyone else who has decision-making responsibility, parenting time, or contact with the child about their plans. The notice must be:

• prepared using Form 1 of the Notice of Relocation Regulations, and
• provided to everyone entitled to notice within at least 60 days of the proposed move date.

Under section 16.9(2) of the Divorce Act and section 2 of the Notice of Relocation Regulations, the notice must state:

• the name of the person proposing to move, and the names of any children who will also be moving,
• the names of any children who won't be moving,
• the date of the proposed move,
• the address of the person's current home and their current contact information,
• the address of the person's new home, their new contact information, and the new contact information for any children who will also be moving, and
• the names of anyone else who has decision-making responsibility, parenting time, or contact with any of the children.

The notice must also provide a proposal about how decision-making responsibility, parenting time, or contact could be handled if the move goes ahead.

Form 1 can be found on the website of the federal Department of Justice as a PDF file that you can download, or as a form you can complete and print directly from the webpage. The same website also has a helpful Fact Sheet about moving after separation.

If the person who plans to relocate doesn't want to give notice, perhaps because of concerns about things like family violence, they can apply to court for an exemption under section 16.9(3), and they don't have to notify anyone else of their application for the exemption as the Rules of Court normally require. The same exemption is available for moves that don't qualify as "relocations."

Objecting to a proposed move

Under section 16.91(1) of the Divorce Act, people who have decision-making responsibility or parenting time have 30 days to object to a proposed move if the person proposing to move is proposing to move with one or more of the children, and the 30 days begin the day after they receive notice of the proposed move. If the person proposing to move is not planning on moving with a child, you do not have the right to object to the move. Similarly, people who have contact with a child do not have the right to object to a move; they're entitled to notice about a proposed move, but they can't do anything to stop it.

A person with decision-making responsibility or parenting time can object to the move by either:

• making an application to court, either for a new order for decision-making responsibility or parenting time or for an order changing an existing order for decision-making responsibility or parenting time, or
• giving the person proposing to move an objection using Form 2 of the Notice of Relocation Regulations.

Someone who decides to go to court rather than sending a Form 2 objection would usually be asking the court for orders that will stop the children from being moved away, such as an order that the child live in a particular town or city, an order that they have the children's primary home, or an order that the children not be moved from a particular town or city.

Under section 16.91(2) of the Divorce Act and section 4 of the Notice of Relocation Regulations, the objection must state:

• the name of the person who received notice of the other person's intention to move,
• the address of the person's current home and their current contact information, and
• the person's objection to the proposed move, and the reasons for their objection.

The objection must also state the person's views about the proposal, given in the notice, about how decision-making responsibility, parenting time, or contact could be managed if the move goes ahead.

Form 2 can be found on the website of the federal Department of Justice as a PDF file that you can download, or as a form you can complete and print directly from the webpage. The same website also has a helpful Fact Sheet about moving after separation.

It's important to know that the person who wants to move can go ahead and move if there is no existing order preventing the move or if you don't object to the proposed move, either by applying to court or by providing an objection in Form 2. Don't ignore a notice of a proposed move!

Making decisions about a proposed move

If someone with decision-making responsibility or parenting time objects to a proposed move, section 7.3 of the Divorce Act says that the parties must first try to resolve the disagreement out of court, using dispute resolution processes such as negotiation, mediation, collaborative settlement processes or arbitration:

To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.

If these sorts of out-of-court processes don't resolve the disagreement, then the parties will have to go to court and ask a judge to make a decision about the proposed move. If the person objecting to the move has filed an application to prevent the move, it'll be their application which goes to court. If the person objecting to the move has provided a Form 2 objection, it'll usually be the person who wants to move who will make an application for permission to move.

Factors

When the court has to decide whether to allow or prohibit a move, it will first of all think about the best-interests factors in section 16(3) of the Divorce Act, and the additional factors in section 16(4) about the impact of family violence. These are the section 16(3) factors::

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Under section 16.92, the court must consider these additional factors when someone wants to move:

(1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

There are a few things that the court must not consider. Firstly, under section 16(5), the court cannot take into account the behaviour of either party, unless the behaviour is relevant to how the party has exercised orders about parenting time or decision-making responsibility. Secondly, under section 16.93(2), the court cannot take into account whether a person who proposes to move with a child would still move if the child couldn't come with them:

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

The burden of proof

The "burden of proof" is how lawyers and judges describe the obligation to convince the court that it should make a particular order. Sometimes both of the people involved in an application have the burden of proof. Sometimes it's just one of the people involved in an application who has the burden of proof. For example, to change a parenting order, the person who wants to change the order is required to show that there has been a "material change in circumstances" before the court will even consider their application to change the order. The person who wants to change the order has the "burden of proof" to show that there has been a change in circumstances, and if they can't convince the court that there has been a change in circumstances, their application is over.

Section 16.93 of the Divorce Act says who has the burden of proof when the parties can't agree about a proposed move, and the burden shifts depending on the children's schedule of parenting time:

(1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

All of that boils down to this:

If the parties share the children's time more or less equally, it's the person who wants to move who has to prove that the move should be allowed.

If the children are almost always in the care of the person who wants to move, it's the person who objects to the move who has to prove that the move should not be allowed.

In middle-ground cases, however, where you can't say that the children's time is equally or almost equally split between the parties or that the children spend almost all of the time with just one party, then the person who wants to move has to show why the move should be allowed and the person who objects to the move has to show why the move should not be allowed. In these cases, both parties have the burden of proof.

Practically speaking, section 16.93 creates a couple of presumptions. If the person who wants to move has almost all of the children's time, then that person should be allowed to move. (That's why it's up to the other person, who has the children for just a small amount of their time, to show that the move is not in the children's best interests.) If the person who wants to move shares the children's time with the other person more or less equally, then the move should be prohibited. (And that's why it's up to the person who shares the children's time with the other person to show that the move is in the children's best interests.) On the other hand, in those middle-ground cases, there are no presumptions about whether moving or not moving is best for the children.

After decisions about a proposed move are made

If the court does not allow a proposed move, that should be the end of things. Section 17 of the Divorce Act, which is about changing orders including parenting orders and contact orders, says that:

(5.3) A relocation of a child that has been prohibited by a court under paragraph (1)(b) or section 16.1 does not, in itself, constitute a change in the circumstances of the child for the purposes of subsection (5).

(Section 17(5) of the Divorce Act says that before the court can change an existing order for parenting time, decision-making responsibility or contact, the court must be satisfied that there has been a "change in the circumstances of the child" before it can even consider an application to change the existing order.)

In other words, if the court has refused to make an order allowing a proposed move, the refusal itself is not a reason to change an existing order for parenting time or decision-making responsibility.

If the court does allow a proposed move, things are a bit different.

First, the fact that the move has been allowed is a reason to change an existing order for parenting time or decision-making responsibility. Section 17 says that:

(5.2) The relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5).

This is important, of course, because moves that are likely to significantly impact the child's relationship with someone who has parenting time are also likely to disrupt that person's ability to spend time with the children the way they used to. Whatever the schedule of parenting time used to be, if the child is moved further away than a 30- or 60-minute drive, it may be impossible to continue the usual schedule and the schedule will need to be updated.

Second, under section 16.95, the court can also make orders about sharing the expenses the parent who isn't moving will have to pay in order to exercise parenting time:

If a court authorizes the relocation of a child of the marriage, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.

This too is important, because the cost of travelling to see the children is likely to be much higher after a move than it was before the move. These expenses may include the cost of gasoline and meals for a person who is driving to see the children, the cost of airline tickets for the person or the children, and the cost of hotels when the person travels to see the children. Under section 16.95, the court can order that the person who moved must pay a share of these expenses.

Moves under the Family Law Act

The provincial Family Law Act talks about moves in two circumstances: changes in the location of a child's home when there is no agreement or order about parental responsibilities and parenting time, under section 46 of the act; and, changes in the location of a child's home when there is an agreement or order about parental responsibilities, parenting time or contact, under sections 65 to 71 of the act.

The portions of the Family Law Act that talk about moving only apply if a proposed move is likely to have a "significant impact" on the child's relationship with certain other people, including other guardians, just like section 2(1) of the federal Divorce Act. The portion that talks about moves when there is no agreement or order, section 46, only applies if:

... the child's guardian plans to change the location of that child's residence and the change can reasonably be expected to have a significant impact on that child's relationship with another guardian.

The portion that talks about moves when there is an agreement or order, sections 65 to 71, only applies if the move qualifies as a "relocation," and whether a move qualifies as a relocation depends on whether the move is likely to have a "significant impact" on the child's relationship with certain other people. Here's the definition of relocation in section 65:

(1) In this Division, "relocation" means a change in the location of the residence of a child or child's guardian that can reasonably be expected to have a significant impact on the child's relationship with

(a) a guardian, or

(b) one or more other persons having a significant role in the child's life.

(2) This Division applies if

(a) a child's guardian plans to relocate himself or herself or the child, or both, and

(b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child.

(The phrase "this Division" refers to the portion of the Family Law Act that deals with relocation, Division 6 of Part 4 of the act, "Care of and Time with Children.")

Neither the Family Law Act nor the Divorce Act say exactly what "significant impact" means. Government could have decided, for example, to say that moves beyond a certain distance or moves that require travelling longer than a certain amount of minutes are moves that will cause a significant impact on children's relationships with other people, but it didn't. As a result, it's been up to the court to decide which moves are likely to have a "significant impact" and which aren't. Because individual cases are heard by individual judges, the cases that talk about "significant impact" talk about what is and isn't a "significant impact" in the specific circumstances of the family in each case. Here's what the judge said in C.E.N. v B.K.N, a 2021 decision of the Supreme Court, when using Family Law Act cases to decide a relocation case under the Divorce Act:

[66] ... Relocation, as defined in the [Divorce Act], states that a relocation is a move that is likely to have a “significant impact” on the child’s relationship with a parent.

[67] In Wong v Rooney, 2016 BCSC 1166 and [T.T. v S.Z.T., 2020 BCSC 1628], a proposed relocation to a new city that was over two hours away was determined to be a relocation, as the courts determined that the move would significantly affect the children’s relationship with others. In D.L.R.A. v S.K.C., 2018 BCSC 1472, a relocation of one hour and 45 minutes was determined not to be a relocation because the Court found that the move would not impact the child’s relationship with the non-relocating parent.

[68] In the case at bar, the move from the Lower Fraser Valley to Kelowna is approximately 322 kilometers, which takes 3.5 hours to travel by car. I find this a significant distance that would significantly affect the children’s relationship with the respondent. ...

Ultimately, whether a particular move is likely to have a "significant impact" on the child's relationship with another guardian or another important person in their life will be decided based on the particular circumstances of the particular family and the potential impact of the move on the particular child. This is what the judge said in Berry v Berry, a 2013 case from the Supreme Court:

[32] The test in ss. 46 and 65 the FLA is child-centred. It focuses on children’s relationships and the impact of a change in residence on those relationships. To qualify as a relocation, the impact must be significant. The use of the qualification “significant," acknowledges that there will be some impact from a move but limits the court's involvement to those moves which will have a significant impact on relationships. The focus is on the best interests of the children.

(We'll talk about section 46 in a moment.)

Moves when there is no agreement or order

Section 46 of the Family Law Act talks about moves when there is no agreement or order. Under section 46(1), the section only applies if:

• there is no written agreement or order about parental responsibilities and parenting time, including an interim order,
• a guardian is asking for an order about parental responsibilities and parenting time, including an interim order, and
• a guardian plans to change where a child lives, and the change is likely to have a significant impact on the child's relationship with another guardian.

This section doesn't talk about agreements and orders about contact, and it doesn't talk about the impact of a move on the child's relationship with someone with contact. It's all about guardians, and the impact of a proposed move on the child.

If a move is proposed and all of the conditions described in section 46(1) are met, section 46(2) describes what the court can and can't think about in deciding whether to allow or prohibit the move:

(2) To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court

(a) must consider, in addition to the factors set out in section 37(2), the reasons for the change in the location of the child's residence, and

(b) must not consider whether the guardian who is planning to move would do so without the child.

The "factors set out in section 37(2)" are the factors the court is required to consider when making decisions about the best interests of children. In addition to considering the reasons for the move, the court must consider the best-interests factors in section 37(2) and the additional factors in section 38 that apply when family violence is an issue. Here are the best-interests factors in section 37:

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

Section 46 is very short and provides relatively brief guidance to guardians and courts, compared to the portions of the Family Law Act about moves when there is an agreement or order. This is probably because the absence of an agreement or order about parental responsibilities and parenting time suggests that the children's guardians have separated recently and haven't made any formal arrangements about parenting their children. However they're managing the children's care and time, these arrangements probably haven't been in place for a very long time and changes to those arrangements are likely.

The most important case so far on moves when there is no agreement or order is a 2019 decision from the Court of Appeal, Duggan v White, which involved a proposed move from the interior to the lower mainland.

Moves when there is an agreement or order

Sections 65 to 71 of the Family Law Act talk about moves when there is an agreement or order. They apply when:

• a guardian is planning a move, with or without a child,
• the move will likely have a significant impact on the child's relationships with a guardian or another person who has "a significant role in the child's life," and
• there is a written agreement or an order about parental responsibilities, parenting time or contact.

People who aren't guardians and might have a significant role in a child's life include parents who aren't guardians, grandparents and other family members, other adults with important roles as caregivers for the child, and people who have an agreement or an order for contact with the child.

Notice of a proposed move

If a guardian wants to relocate, with or without a child, section 66 of the Family Law Act requires them to give 60 days' written notice of the proposed move to:

• all other guardians, and
• people who have contact with the child.

Other people who have significant roles in the child's life aren't entitled to notice.

There is no prescribed form of notice, the way there is under the Divorce Act. Any kind of written notice will do, including notice given by email. The notice must state:

• the date of the proposed move, and
• the place to which the guardian proposes to move.

Under section 66(2), the moving guardian can apply to court for an exemption from the notice requirement if there are concerns about family violence or they can prove that the child has no ongoing relationship with a guardian or a person with contact. These applications can be made without the moving guardian notifying anyone else of their application, as the Rules of Court normally require.

Objecting to a proposed move

Under section 68, a guardian who receives notice of another guardian's plan to relocate with a child has 30 days from the date they received the notice to file an application in court for an order preventing the proposed move. There is no prescribed form of objection, the way there is under the Divorce Act.

People with contact who are notified about a guardian's plan to move aren't entitled to object. Guardian's aren't entitled to object either, if the guardian planning to move isn't planning on moving with a child.

Making decisions about a proposed move

If someone with decision-making responsibility or parenting time objects to a proposed move, section 67 of the Family Law Act says that the child's guardians and persons with contact must make their best efforts to work with each other to resolve any issues relating to the proposed move. The act doesn't say how these efforts are to be made, but the usual out-of-court dispute resolution processes are negotiation, mediation, collaborative settlement processes and arbitration.

If these sorts of out-of-court processes don't resolve the disagreement, then the guardians will have to go to court and ask a judge to make a decision on the application about the proposed move. These applications are governed by section 69, which allows guardians to ask the court for orders allowing or prohibiting the relocation of a child.

Factors

When the court has to decide whether to allow or prohibit a move, it will first of all think about the best-interests factors in section 37(2) of the Family Law Act, and the additional factors in section 38 about the impact of family violence. These are the section 37(2) factors:

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

Under sections 69(4) and 69(5), the court must consider these additional factors, from section 69(4)(a), when someone wants to move:

• whether the guardian who plans to move is proposing to move in good faith, and
• whether the guardian who plans to move has proposed "reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life."

"Good faith" is addressed in section 69(6):

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:

(a) the reasons for the proposed relocation;

(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;

(c) whether notice was given under section 66;

(d) any restrictions on relocation contained in a written agreement or an order.

There are a few things that the court must not consider. Firstly, under section 37(4), the court cannot take into account the behaviour of a guardian, unless the behaviour is relevant to one or more of the best-interest factors listed in section 37(2). Secondly, under section 69(7), the court cannot take into account whether a guardian who proposes to move with a child would still move if the child couldn't come with them:

(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted.

The burden of proof

Section 69 of the Family Law Act says who has the burden of proof when guardians can't agree about a proposed move, and, like the Divorce Act, the burden shifts depending on the children's schedule of parenting time. If the guardians do not have "substantially equal parenting time" with the child, under section 69(4)(a), the guardian who wants to move must show that:

• they are proposing to move in good faith, and
• they have proposed "reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life."

If the guardian who wants to move can prove these two points, then, under section 69(4)(b), the proposed move is presumed to be in the best interests of the child unless another guardian can prove otherwise.

If the guardians do have "substantially equal parenting time" with the child, under section 69(5), the guardian who wants to move must show that:

• they are proposing to move in good faith,
• they have proposed "reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life," and
• the move is in the best interests of the child.

In other words, if the guardian who wants to move has the child for most of the time, the guardian must only show that they are proposing to move in good faith – using the factors in section 69(6) – and that they've proposed reasonable arrangements for how parenting could work after the move, and the move will be presumed to be in the best interests of the child. The burden then lies on the other guardian to show that the move is not in the best interests of the child.

If the guardians share the child's time, then the guardian who wants to move must not only show that they are proposing to move in good faith and that they've proposed reasonable arrangements for how parenting could work, they also have the burden of proving that the proposed move is in the best interests of the child.

After decisions about a proposed move are made

If the court does not allow a proposed move, that should be end of things. Section 71 of the Family Law Act says that:

The fact that an order is made that prohibits a child's relocation is not, in itself, a change in the child's circumstances for the purposes of section 47.

Section 47 of the Family Law Act is about changing orders about parental responsibilities and parenting time, and says that before the court can change an existing order about parenting arrangements, the court must be satisfied that there has been a "change in the circumstances of the child" before it can even consider an application to change the existing order. In other words, if the court has refused to allow a proposed move, the refusal itself is not a reason to change an existing order about parental responsibilities and parenting time.

If the court does allow a proposed move, things are a bit different. Section 70 of the act says that if the court allows a move, the court can also:

• make or change an order about parental responsibilities and parenting time, with the goal of trying to preserve the parenting arrangements in place before the move as much as possible, and
• make an order to ensure that the moving guardian complies with any terms of the order allowing the move.

The part of section 70 about changing orders about parenting arrangements is important, because moves that are likely to significantly impact the child's relationships with a guardian or another person who has a significant role in the child's life are also likely to disrupt that guardian's ability to spend time with the children and participate in making decisions about the children the way they used to. Whatever the schedule of parenting time used to be, if the child is moved further away than a 30- or 60-minute drive, it may be impossible to continue the usual schedule and the schedule will need to be updated.

Preventing moves

For many parents, the prospect of the other parent moving away with the children after separation is a bit of a nightmare. Most moves, especially moves that result in a significant reduction of the parent's time with the children, will impact the quality of the relationship between the children and the parent who is left behind. On top of that, it can be really hard to predict whether a proposed move will be allowed or not, and the time, effort and cost of dealing with an application to relocate can be significant.

If there's any possibility that a parent may want to move away with the children after separation, terms can be included in separation agreements, arbitrator's awards and court orders about the children's parenting arrangements to discourage the likelihood of moves in the future.

Agreements

People who are making a separation agreement can include terms about pretty much anything in their agreement. (There are a few exceptions to this general rule. Agreements that say that no child support will be paid or that a person may not remarry, for example, will not be upheld by the court.) An agreement that deals with children's parenting arrangements could include terms saying that the parents will not:

• move further than a certain number of kilometres away from each other, or away from a central point, like the children's school,
• move outside of a particular neighbourhood, town, city or district,
• move outside British Columbia, or
• move without giving a certain number of months' notice to the other parent.

It can be particularly important to include terms about moving in agreements because of the "good faith" test in sections 69(4) and 69(5) of the Family Law Act. Under those sections, a guardian who wants to move away must prove that they are proposing to move in good faith, among other things, and the factors the court must consider in deciding whether the guardian is acting in good faith include, under section 69(6):

(d) any restrictions on relocation contained in a written agreement or an order.

Orders

If people are dealing with issues about parental responsibilities, parenting time or contact in court, it's possible to ask the court to include terms about moving in its order. The court, as a part of its general authority to include terms and conditions in orders about parenting under section 218 of the Family Law Act, can make orders saying that the parents will not:

• move further than a certain number of kilometres away from each other, or away from a central point, like the children's school,
• move outside of a particular neighbourhood, town, city or district, or
• move outside British Columbia.

Again, it can be important to include terms about moving in orders because of the "good faith" test in sections 69(4) and 69(5) of the Family Law Act. Under those sections, a guardian who wants to move away must prove that they are proposing to move in good faith, among other things, and the factors the court must consider in deciding whether the guardian is acting in good faith include, under section 69(6):

(d) any restrictions on relocation contained in a written agreement or an order.

Section 64(1) of the Family Law Act also allows the court to "make an order that a person not remove a child from a specified geographical area," called "non-removal orders." In the case of K.K. v D.H., a 2021 decision of the Provincial Court, the judge made an order under section 64 after a guardian had moved with the child from Nanaimo to Victoria, with the result that the child was returned to Nanaimo.

Section 64(2) also allows the court to make other orders to ensure that people comply with a non-removal order made under section 64(1), but only if it is satisfied that a person is planning to move a child out of the province and is unlikely to return with the child:

(2) On application, if satisfied that a person proposes to remove a child from, and is unlikely to return the child to, British Columbia, the court may order the person who proposes to remove the child to do one or more of the following:

(a) give security in any form the court directs;

(b) surrender, to a person named by the court, passports and other travel records of the person who proposes to remove the child or of the child, or of both;

(c) transfer specific property to a trustee named by the court;

(d) if there is an agreement or order respecting child support, pay the child support to a trustee named by the court.

Orders under section 64 won't stop someone from applying to move with a child under section 69, but they will help to stop someone from moving without getting permission from the court first.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Criminal Code of Canada, sections 281-283
• Notice of Relocation Regulations

Links

• Moving and travelling with your children from Legal Aid BC
• Moving after separation or divorce? Fact Sheet from the Department of Justice
• Notice of Relocation Form from Department of Justice's website
• Objection to Relocation Form from Department of Justice's website

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd 5 August 2022.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.