Relocating With a Child in BC: Moving and Your Parenting Order

A move across town, across the province or out of British Columbia can upend a parenting schedule. If you want to move with your child, or you are worried the other parent will, you may be wondering whether the existing order still works and what a court would look at.

This article explains in general terms how relocation fits with changing a parenting order in British Columbia. Every family is different, and the rules differ depending on which law your order was made under, so use this as a starting point and not as advice.

This article covers the law of British Columbia.

Relocation is treated differently from other changes

Ordinarily, a court can change, suspend or terminate a parenting order under Family Law Act s. 47 only if it is satisfied there has been a change in the needs or circumstances of the child since the order was made, including because of a change in another person's circumstances.

Relocation has its own path. Relocation orders are decided under s. 69, which applies the usual best-interests factors from s. 37(2) plus additional relocation factors. The Act also says that a prohibition on relocation is not, by itself, a change in circumstances for the purposes of s. 47. In plain words, you generally cannot use an order that blocks a move as the reason to reopen the parenting arrangements.

The best-interests test sits at the centre

Agreements and orders about guardianship, parenting arrangements and contact must be made in the best interests of the child only. The court looks at all of the child's needs and circumstances, including health, the child's views, relationships, care history, stability and family violence.

An arrangement is not in a child's best interests unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. A court may consider a person's conduct only if it substantially affects one of the s. 37(2) factors. Where family violence is part of the picture, s. 38 sets out how the court assesses it, including its seriousness, how recent and frequent it was, coercive and controlling behaviour, and steps taken to prevent it happening again.

• How a move would change the child's relationships with each parent and with extended family.
• Whether the child's routine, schooling and community would be stable.
• The child's own views, where they can be considered.
• The history of who has cared for the child.
• Any family violence and its effect on the child.

Which law your order was made under matters

If your parenting order was made under the federal Divorce Act, it is varied under Divorce Act s. 17, not the Family Law Act. The court must find a change in the circumstances of the child, and it cannot consider conduct that could not have been considered when the original order was made.

Contact orders for people who are not guardians, such as grandparents, are changed under Family Law Act s. 60, which uses the same change-in-circumstances test as s. 47. The notice requirements and the detailed relocation factors depend on the facts and on which statute applies, so a lawyer can confirm what applies to you.

Tools if there is a risk the child will not come back

Where a person proposes to remove a child from British Columbia and is unlikely to return the child, the court may order security, surrender of travel documents or transfer of property to a trustee. The court may also order a person not to remove a child from a specified area.

The court can also require parties to take part in family dispute resolution, counselling or programs. These tools can sometimes help parents work out a move or a revised schedule without a full hearing.

What to do next

If you are on either side of a possible move, start by reading your current order or agreement closely. A written agreement can be made part of a court order, and a family law agreement is binding on the parties whether or not it is filed with a court. Parenting agreements are only valid to the extent they serve the child's best interests.

• Find your current order or agreement and note which law it was made under.
• Write down how a move would change the child's daily life, schooling and time with each parent.
• Gather records that show the child's care history and routines.
• Keep communication with the other parent calm and in writing where you can.
• If you apply in Provincial Court, an application to change an order under the Family Law Act is made on Form 3, with a copy of the order or agreement attached.
• Speak with a lawyer early, especially about notice and timing, before any move happens.

Frequently asked questions