Can My Ex Take Our Child Out of BC Without My Consent?

Few things alarm a separated parent more than the thought that the other parent might leave BC with your child. The answer is rarely a simple yes or no. It depends on who is a guardian, what your agreement or order says, and whether the plan is a short trip or a move.

This article explains how British Columbia law approaches the question, what notice a parent may have to give, and what protective steps exist. It is general information, not advice for your situation.

This article covers the law of British Columbia.

Start with guardianship

Under the Family Law Act, each parent is a child's guardian both while living together and after separating. Only a guardian may have parental responsibilities and parenting time. So if you and your ex are both guardians, neither of you loses that status just because you separated.

There are exceptions. An agreement or order made after separation, or when parents are about to separate, may provide that a parent is not a guardian. A parent who has never lived with the child is not a guardian unless a parentage provision applies, all the guardians agree, or the parent regularly cares for the child, and that parent has no guardianship-based relocation or travel rights. A new partner or stepparent does not become a guardian only by marrying or entering a marriage-like relationship with a guardian.

A trip is not the same as a relocation

The law treats moving differently from travelling. A relocation is a change in where the child or a guardian lives that can reasonably be expected to significantly affect the child's relationship with a guardian or another significant person. There is no set distance or kilometre limit; the focus is on the effect on the child's relationships.

Whether a holiday trip needs your consent depends on the wording of your agreement or order, so read it closely. Many parents include travel terms, and a lawyer can confirm what yours requires.

What happens if there is a written agreement or order

The Family Law Act relocation rules apply when a guardian plans to relocate and a written agreement or order about parenting arrangements or contact applies to the child. In that case, the guardian must give every other guardian and every person with contact at least 60 days' written notice of the date and the proposed location.

After notice, everyone must use their best efforts to cooperate in resolving issues from the proposed move. The guardian may relocate on or after the stated date unless another guardian files an application to prohibit it within 30 days after receiving the notice. The court can then permit or prohibit the relocation.

The court may exempt a guardian from some or all 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.

What if there is no agreement or order

If no written agreement or order on parenting arrangements applies, the notice and objection process does not apply. Instead, if a guardian plans a move likely to significantly affect the child's relationship with another guardian and an application for a parenting order is made, the court considers the reasons for the move in addition to the best-interests factors. The court must not consider whether the moving guardian would go without the child. Because there is no process to rely on, getting legal advice early matters.

Protective steps and what to do next

A court can order that a person not remove a child from a specified geographical area. If the court is satisfied a person plans to remove the child from BC and is unlikely to return the child, it may order that person to give security, surrender passports and travel records, transfer property to a trustee, or pay child support to a trustee. These removal orders do not apply to a relocation under the relocation rules, which are dealt with separately.

Passports also matter. A child's passport shall not be issued where a court order or separation agreement gives the non-custodial parent access rights, unless the application includes evidence that issuing it is not contrary to those terms. Canada.ca says all parents or legal guardians should sign a child passport application.

• Find your current agreement or order and read any travel or moving terms.
• Write down any move plans the other parent has mentioned, with dates.
• Keep every notice you receive and note the date you received it, because the 30-day window runs from receipt.
• Do not ignore a notice; get legal advice quickly.
• If you fear the child will not be returned, ask a lawyer about a court order right away.

Frequently asked questions