Can I Change a BC Parenting Order After Moving Provinces?

You have a BC parenting order, and now you or your ex has moved to another province. Maybe the child went too. Suddenly the order no longer fits daily life, and you are not sure which court you can ask to change it.

There is no single answer, because it depends on where the child lives, whether you were married, and whether the move followed the proper steps. This article explains the main rules so you can see what questions a lawyer will ask.

This article covers the law of British Columbia.

Where the child lives matters most

Under the Family Law Act, a BC court may make a parenting order only if the child is habitually resident in BC when the application is filed. Whether a child is habitually resident in BC depends on the facts of where the child has been living, so it is worth confirming with a lawyer how it applies to your situation.

If the child is not habitually resident in BC, the court can still act where it is satisfied of listed conditions, including that the child is physically present, that there is a real and substantial connection to BC, and that BC is the more convenient forum. A BC court may also act if the child is physically present in BC and would suffer serious harm if left with, returned to, or removed from a guardian, and it may decline jurisdiction if another place is more appropriate.

In practice, a child who has settled in another province may mean that the BC court is no longer the natural place to ask for a change. That is a fact-specific question, and a lawyer can confirm how it applies to you.

Was the move done properly?

If a guardian plans to relocate and a written agreement or order about parenting arrangements or contact applies, the Family Law Act relocation rules apply. Relocation means a change in the residence of the child or a guardian that can reasonably be expected to significantly affect the child's relationship with a guardian or another significant person. It is not based on a set distance.

• The relocating guardian must give every other guardian and every person with contact at least 60 days' written notice of the date and the proposed location.
• The move may go ahead on or after the stated date unless another guardian files an application to prohibit it within 30 days of receiving the notice.
• A 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.

Exception: if no written agreement or order on parenting arrangements applies, that notice and objection process does not apply, and section 46 governs instead. The court then considers the reasons for the move in addition to the best-interests factors.

Married parents: the Divorce Act may apply

The Divorce Act has its own relocation rules for spouses and former spouses who are married. Unmarried parents proceed under the BC Family Law Act. Under the Divorce Act, a person who intends to relocate must give at least 60 days' notice in the prescribed form, and the move can go ahead if the recipient does not object within 30 days and no order prohibits it.

For corollary relief such as parenting, a court has jurisdiction if either former spouse is habitually resident in the province at the start of the proceeding, or both former spouses accept the court's jurisdiction. For the divorce itself, either spouse must have been habitually resident in the province for at least one year immediately before the proceeding began.

Orders from a new province

If you start a case in your new province and get an order there, BC may still have to deal with it. A BC court must recognize an extraprovincial order if the issuing tribunal would have had jurisdiction under BC's rules, the parties had reasonable notice and a chance to be heard, the tribunal had to consider the child's best interests, and recognition is not contrary to BC public policy.

A recognized order has the same effect as, and may be enforced as if it were, a BC order made under section 45. Where recognized orders conflict, the BC court recognizes the one most consistent with the child's best interests, and a recognized order can be superseded where a change in circumstances affects, or is likely to affect, the child's best interests.

What to do next

• Gather the current BC order or agreement and any notices of relocation, objections or replies.
• Write down where the child has lived, and since when, including dates of any move.
• Note whether you were married, because that decides whether the Divorce Act or Family Law Act relocation rules apply.
• Do not start cases in two provinces without advice; conflicting orders can create problems.
• Speak with a family lawyer about which court is the right one before filing anything.

Frequently asked questions