How Does a BC Court Decide a Child Relocation Application?

If you are bringing or facing a relocation application, you probably want to know what the judge actually looks at. The rules are more structured than many people expect, and they treat the two parents' positions differently depending on how time with the child is shared.

This article explains the best-interests test, the burden of proof, the questions a court must not ask, and the kind of evidence that tends to matter.

This article covers the law of British Columbia.

Which law applies

If you were married, the Divorce Act relocation rules apply to spouses and former spouses, while unmarried parents proceed under the BC Family Law Act. Under the Family Law Act, the relocation rules apply when a written agreement or order respecting parenting arrangements or contact applies. If none applies, section 46 governs, and the court considers the reasons for the move in addition to the best-interests factors.

On a guardian's application, the BC court may make an order permitting or prohibiting a relocation of a child.

What the court weighs

Under the Family Law Act, the court considers the best-interests factors in section 37(2) plus the relocation factors in section 69(4)(a). In judging good faith, it looks at the following:

• the reasons for the move
• whether it is likely to enhance the child's or guardian's quality of life, including emotional well-being or financial or educational opportunities
• whether notice was given
• any restriction on relocation in an agreement or order

Under the Divorce Act, the court considers its usual section 16 factors and also:

• the reasons for the relocation and its effect on the child
• the time spent with the child and the involvement of each person
• whether the relocating person met the notice requirement
• whether an order or agreement says where the child is to live
• whether the proposed parenting changes are reasonable, including travel costs
• each person's compliance with family obligations

Who carries the burden of proof

The burden of proof is who has to convince the court. It shifts with the parenting schedule.

Questions the court must not ask

Several rules keep the child's interests from being tangled up with the parent's choices. In a Family Law Act relocation application, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted. Under the Divorce Act, if the relocation was prohibited, the court shall not consider whether the person who intends to relocate would relocate without the child or not relocate. Under the Family Law Act, where there is no agreement or order, the court must not consider whether the guardian planning to move would do so without the child.

If a relocation is permitted, the court must seek to preserve, to a reasonable extent, the parenting arrangements and contact between the child and the other guardians and contact persons.

Evidence and next steps

Evidence should speak to the factors above. Good evidence is specific, recent and about the child rather than about the other parent's faults.

• Show your reasons for the move, such as a job offer, housing, schooling or family support, with documents.
• Describe who has done the day-to-day caregiving and how time is actually shared.
• Put forward a concrete long-distance parenting plan, with a schedule and a realistic travel budget.
• Keep proof of when and how notice was given.
• Gather any agreement or order, especially any restriction on moving.
• Get advice early on which law applies and who carries the burden of proof.

Relocation cases turn heavily on their facts, so a lawyer can tell you how the rules are likely to apply to your situation.

Frequently asked questions