How to Give Notice Before Moving With Your Child in BC: The 60-Day Rule

If you are thinking about moving with your child, the law may require you to tell the other parent in writing well before you go. Getting this step right can head off disputes. Getting it wrong can make a move much harder to defend later.

This article explains who must receive notice, what it should say, which law applies to you, what to do if notice is unsafe, and what happens in the weeks after notice is given. It is general information only, and a lawyer can confirm how it applies to your facts.

This article covers the law of British Columbia.

Which law applies to your move

Two different laws can apply in British Columbia, and the starting point is whether you are or were married. The Divorce Act covers spouses and former spouses who are married; unmarried parents proceed under the BC Family Law Act.

Under the Family Law Act, a relocation is a change in the location of the residence of a child or the child's guardian that can reasonably be expected to significantly affect the child's relationship with a guardian or another significant person. The definition turns on the effect on relationships, not on a set number of kilometres.

Who must get notice, and how much

Under the Family Law Act, where Division 6 applies because a written agreement or order respecting parenting arrangements or contact applies to the child, a guardian planning a relocation must give every other guardian and every person with contact at least 60 days' written notice of the date and the proposed location of the relocation. If no written agreement or order applies, the Division 6 notice process does not apply and section 46 governs instead.

Under the Divorce Act, a person with parenting time or decision-making responsibility who intends to relocate must notify, at least 60 days before the expected date and in the prescribed form, anyone with parenting time, decision-making responsibility or contact under a contact order.

If you have never lived with the child, you may not be a guardian at all unless an exception applies, and a stepparent or new partner does not become a guardian only by marrying or partnering with a guardian. Those points affect who counts as a guardian and who must be told.

What the notice should say

• Family Law Act: the date of the relocation and the proposed location.
• Divorce Act: the expected date of the relocation and the new address and contact information.
• Divorce Act: a proposal for how parenting time, decision-making responsibility or contact could be exercised, plus any other prescribed information.

Even where the Family Law Act asks for less, a clear proposal for how the child will keep in touch with the other parent is sensible. The Divorce Act notice must be in a prescribed form, so check the current BC court forms before you prepare your notice.

When notice may be unsafe or impossible

Under the Family Law Act, the court may exempt a guardian from all or part of the notice requirement where notice cannot be given without a risk of family violence, or where there is no ongoing relationship with the other guardian or contact person. The application may be made without notice to the other party.

Under the Divorce Act, the court may on application provide that the notice requirements do not apply or modify them, including where there is a risk of family violence. That application may also be made without notice to any other party.

Do not simply skip notice because you believe it is unsafe. Ask the court first, and speak to a lawyer or a family justice resource about how to do that safely.

What happens after notice, and what to do next

After notice is given and before the move, guardians and contact persons must use their best efforts to cooperate in resolving issues arising from the proposed relocation.

Where Family Law Act Division 6 applies, a guardian who gave notice may relocate on or after the stated date unless another guardian files an application to prohibit the relocation within 30 days after receiving the notice. Where no written agreement or order applies, this process does not apply and section 46 governs instead. Under the Divorce Act, you may relocate on the stated date if a court authorizes it, or if the recipient does not object within 30 days of receiving notice and no order prohibits the relocation. An objection must state the objection, the reasons and views on the proposed parenting arrangements.

Notice also matters if the move reaches court. Under the Family Law Act, the court looking at good faith considers the reasons for the move, whether it is likely to enhance quality of life, whether notice was given, and any restriction on relocation in an agreement or order. Under the Divorce Act, the court considers whether the relocating person met the notice requirement.

• Work out whether the Divorce Act, Family Law Act Division 6 or section 46 applies to you.
• Read any existing agreement or order for travel or relocation terms.
• Identify every guardian and every person with contact.
• Prepare written notice with the date, location and, where needed, your new address and a parenting proposal.
• Keep proof of when and how you delivered it, and count the 60 and 30 days.
• If notice is unsafe, speak with a lawyer about applying for an exemption before you act.

Frequently asked questions