Can I Move Away With My Children to Escape Abuse in BC?

Leaving a home where there is abuse is often the hardest decision a parent makes, and it becomes more complicated when children are involved. You may worry about whether leaving will be held against you later.

This article explains the legal tools available in British Columbia and how family violence is treated in parenting decisions. It does not replace advice about your own situation, which matters a great deal here.

This article covers the law of British Columbia.

Your safety comes first

If you or your children are in immediate danger, contact police or emergency services. A legal strategy should never require you to stay in an unsafe place.

Whether and how you can relocate with children depends on whether there are existing court orders or agreements, how far you plan to move, and the circumstances. Those details change the answer, so it is worth speaking with a family lawyer as early as possible, ideally before you move.

What counts as family violence

The Family Law Act defines family violence broadly. It includes physical abuse, including forced confinement or deprivation of the necessities of life, and it does not include reasonable force used to protect yourself or others. It includes sexual abuse and attempts to physically or sexually abuse a family member.

It also includes psychological or emotional abuse, such as intimidation, harassment, coercion, threats (including threats about other persons, pets or property), stalking, and intentional damage to property. Unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy count too. For a child, direct or indirect exposure to family violence is itself family violence.

Court orders that can protect you and your children

• Protection order: a court may make one if family violence is likely to occur and the other person is an at-risk family member. It can restrain contact and communication, restrict attendance at specified places, and direct police to remove, accompany or seize items such as weapons.
• Children: if the at-risk family member is a child, the court must also consider whether the child may be exposed to family violence without an order, and whether an order should also be made about the child.
• Without notice: an application may be made without notice to the other person. The other person can then apply to set aside, change or end the order.
• Exclusive occupation: in the Supreme Court, a spouse can be granted exclusive occupation of the family residence for a specified period. This applies to spouses and only in the Supreme Court, but a Part 9 order can restrict access to a residence in either court.
• Peace bond: under Criminal Code s 810, a court may order the person to keep the peace for up to 12 months, and must consider whether a firearms or weapons prohibition is desirable.

A protection order expires one year after it is made unless the court provides otherwise. Any application to extend, change or end it must be made before it expires, although a new application can be made afterwards.

How family violence affects parenting decisions

In parenting matters, the parties and the court must consider only the best interests of the child. The impact of any family violence on the child's safety, security or well-being is a required factor, whether or not the violence was directed at the child. An agreement or order is not in the child's best interests unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety.

When assessing family violence, the court looks at its seriousness and recency, its frequency, whether emotional abuse forms a pattern of coercive control, whether the child was targeted or exposed, the harm to the child, and steps taken to prevent further violence. No parenting arrangement, including equal parenting time, is presumed to be in a child's best interests, and the court may require that parenting time be supervised by a named person.

What to do next

• Get to a safe place, and keep copies of key documents such as identification, children's records and any existing court orders or agreements.
• Document incidents with dates, injuries, messages, photos and who saw what.
• Note any steps you have taken to protect your children, since the court looks at those.
• Speak with a family lawyer or legal aid service before relocating, especially if there is an order or agreement about the children.
• Ask about a protection order and whether it should cover your children.

Frequently asked questions