How to Move with your Children - BC Family Law Act
By Michelle Volkmann
With the cost of living continuing to rise in British Columbia, some separated parents are looking to move with their children for better economic stability. Often, the move can be hundreds of kilometers away from the child's habitual place of residence.
Relocation applications can be started in Provincial Court or the Supreme Court of BC. When commencing relocation proceedings in Supreme Court, the provisions under the Divorce Act and the Family Law Act may apply. However, relocation procedures in Provincial Court, only operate under the Family Law Act and the corresponding Provincial Family Court Rules that came into effect on May 17, 2021.
The purpose of this blog is to assist parents living in British Columbia who intend to bring relocation proceedings in the Provincial Family Court. What follows is a brief overview of the relevant Family Law Act provisions and Provincial Court Family Forms and Rules relating to relocation.
What is Relocation?
Relocation means a change in the location of the residence of a child, that could have a significant impact on the child's relationship with another parent/guardian. Under the Family Law Act, the issue of relocation is governed under Division 2 or Division 6 of Part 4 - Care of and Time with Children. Like all matters relating to children, the primary concern for the courts in determining issues of relocation is the best interests of the child.
The applicable relocation provisions may depend on the pleadings contained in an "Application About a Family Law Matter" made in Provincial Family Court, and whether there are any orders or written agreements in place. Division 2 applies when there is no order or written agreement, and Division 6 governs when there is. The difference in these Divisions is the notice requirements and legal test that the courts apply.
What to do when an Application About a Family Law Matter has been filed in Provincial Family Court
1. The court documents include parenting arrangements, but not relocation
When parties to a family law proceeding file their respective Application About a Family Law Matter and Response to an Application About a Family Matter in Provincial Family Court, they often seek orders for parenting arrangements under section 45 of the Family Law Act. However, not all parties intend to relocate at the time of filing court documents, resulting in their initial pleadings including parenting arrangements, but not issues of relocation. In addition, family law matters could continue for months or even years with interim Orders being granted for parenting arrangements in the process leading up to eventual trial dates where a final Order relating to parenting arrangements is made.
When interim Orders or final Orders have been granted for parenting arrangements, the parent intending to relocate (not having included this in their pleadings) will have to effect the relocation process under Division 6 of the Family Law Act. Specifically, they will need to give notice of their intention to relocate under section 66 of the Family Law Act, which reads:
66 (1) Subject to subsection (2), a child’s guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days’ written notice of
(a) the date of the relocation, and
(b) the name of the proposed location.
There is no prescribed form of this notice, nor is there an Application for Relocation under the Provincial Family Court Forms for relocating parents to file with the court and serve on the other parent. The notice simply has to be in writing and given to those mentioned in the provision.
Once notice has been given, the relocating parent may relocate on or after the date set out in the written notice, unless the other parent/guardian opposes the intended relocation by bringing an Application for Order Prohibiting the Relocation of a Child under section 69 of the Family Law Act within 30 days of being served with the written notice.
Should an Application for Order Prohibiting the Relocation of a Child be made and served upon the relocating parent, they must attend the court hearing specified therein. The relocating parent may respond with a Form 19 Written Response to Application.
In determining whether to grant or deny an order prohibiting the relocation of a child, in addition to the provisions on the best interests of the child under section 37, the court must also consider the factors under section 69(3) to (7), which reads:
(3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (a) of this section.
(4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,
(a) the relocating guardian must satisfy the court that
(i) the proposed relocation is made in good faith, and
(ii) the relocating guardian 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
(5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court
(a) of the factors described in subsection (4) (a), and
(b) that the relocation is in the best interests of the child.
(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 [notice of relocation]
(d) any restrictions on relocation contained in a written agreement or an order.
(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.
2. The Court documents include parenting arrangements and relocation
Where either parent seeks parenting arrangements and relocation in their original pleadings and no written agreement or interim orders have been made, Division 2 will be applicable. Under Division 2, section 45 and 46 provides:
Orders respecting parenting arrangements
…45 (1) On application by a guardian, a court may make an order respecting one or more of the following:
(a) the allocation of parental responsibilities
(b) parenting time
(c) the implementation of an order made under this division
(d) the means for resolving disputes respecting an order made under this Division.
(2) An order under subsection (1) must not be made if the child's guardians are the child's parents and are not separated.
(3) The court may make an order to require that the transfer of a child from one party to another, or that parenting time with a child, be supervised by another person named in the order if the court is satisfied that supervision is in the best interests of the child…
Changes to child's residence if no agreement or order
…46 (1) This section applies if all of the following circumstances exist:
(a) no written agreement or order respecting parenting arrangements applies in respect of a child
(b) an application is made for an order described in section 45 (1) (a) or [orders respecting parenting arrangements]
(c) 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
(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) [best interests of child], 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.
Under Division 2, there are no additional notice requirements if a relocating parent decides that they want to change the location of a child’s residence prior to any interim or final orders for parenting arrangements. A relocating parent finding themselves in this situation, should consult with the other parent. If the other parent opposes and believes that the relocating parent may still take the child and move, their recourse will be to bring an Application About a Priority Parenting Matter seeking an order preventing relocation of a child under section 64 of the Family Law Act.
When a parent brings an application under Division 2, the Courts must consider the best interest of the child set out in section 37(2) and those factors under section 46(2)(a)(b). However, the court does not have to apply the additional factors found under section 69(4), making the legal test under Division 2 less rigorous that Division 6.
When there are no applications in Provincial Family Court and no Orders- or Written Agreements relating to parenting arrangements
Where there are no Provincial Family Court proceedings, no written agreement and no orders for parenting arrangements, Division 2 of the Family Law Act will apply. A parent intending to relocate with the child should start by consulting the other parent/guardian. If the other parent opposes, they can either file an Application About a Family Law Matter or an Application About a Priority Parenting Matter.
Ultimately, relocation is bound to have a great impact on a child's life. Failure to understand and follow the legal requirements for relocation, could come at a great cost financially. The only consideration is the best interest of the child. How will they be affected being removed from the other parent, their grandparents and any other persons who have a significant role in their lives? Where possible, continue an open and cooperative approach when deciding your options for relocation.
For more information regarding the Divorce Act provisions relating to relocation, check out our blog on how to move away with or without children. The team of experienced family lawyers at Crossroads Law are also here to help. Get started with a free 20-minute consult which you can book online or give us a call!