- Each parent who lived with the child is the child's guardian, including after the parents separate, and moving out does not itself end guardianship.
- Parenting agreements and orders must consider the child's interests only.
- When a written agreement or order is in place, a guardian planning to relocate must give at least 60 days' written notice if the move can significantly affect the child's relationship with another guardian.
Right after a separation, many parents feel pressure to leave the home, sometimes with the children, sometimes to another city or to live with family. The rules on what you can do without the other parent's consent are not always what people expect.
This article explains guardianship, how decisions about children are made, and the notice rule for relocation under the BC Family Law Act. It is general information, and children's situations vary widely, so get legal advice before acting.
This article covers the law of British Columbia.
Moving out does not end guardianship
Each parent who lived with the child is the child's guardian, including after the parents separate. Moving out does not itself end guardianship. Only a guardian may have parental responsibilities and parenting time.
There are exceptions. A parent who has never resided with the child is not a guardian unless they meet listed exceptions, such as regularly caring for the child. An agreement or order can also provide that a parent is not a guardian.
In practical terms, if both of you are guardians, moving out of the house does not itself end that status for either of you. How living arrangements and day-to-day care will work in your situation depends on the facts, so it is worth confirming with a lawyer.
How decisions about the children are made
In making parenting agreements and orders, the parties and the court must consider the child's interests only, and all of the child's needs and circumstances must be considered. For married spouses under the federal Divorce Act, the court likewise takes into consideration only the interests of the child of the marriage when making a parenting order.
The Family Law Act applies to married and unmarried spouses for children, while the Divorce Act applies only to married spouses and governs divorce. Child support and parenting claims are not subject to the two-year limit that applies to property and spousal support claims.
Each parent and guardian also has a duty to provide support for a child.
Relocation and the 60-day notice rule
When a written agreement or order is in place, a guardian planning to relocate must give at least 60 days' written notice. The rule applies if the move can significantly affect the child's relationship with another guardian.
What happens when there is no agreement or order yet depends on the facts, and this is an area where acting first can cause problems later. In any parenting decision, the child's needs and circumstances must be considered. How that would apply to a particular move depends on your situation, so a lawyer can explain your position before you decide.
| Situation | What the law says |
|---|---|
| You move out but stay in the same area | Moving out does not itself end guardianship |
| Written agreement or order exists and you plan to relocate | At least 60 days' written notice if the move can significantly affect the relationship with another guardian |
| No agreement or order yet | Depends on the facts; get legal advice before moving |
Agreements, orders and getting help
A lawyer is not required to make an agreement, but it is very important to speak to a lawyer before signing a document that settles matters with a spouse. A written parenting agreement that is filed in court is enforceable under the Act as if it were a court order. The Provincial Court Form 26 is the request to file an agreement.
A parenting agreement is subject to the child's interests. If it is not in the child's interests, the court must set aside or replace all or part of it with an order.
Family dispute resolution is a process used to attempt to resolve a family law dispute outside court, and one object of the Act's scheme is to ensure parties are informed of the methods available to resolve a dispute.
Who stays in the family home is a separate question from guardianship. If you and the other parent are spouses, the Supreme Court can make a temporary order giving a spouse exclusive occupation of a family residence for a specified period, including to the exclusion of the other spouse. That order does not transfer ownership. Whether this could apply to you depends on your situation, so it is worth confirming with a lawyer.
What to do next
- Do not move the children out of the area without first getting legal advice.
- Write down the children's routines, schools, health needs and who has handled which care.
- Keep communication with the other parent civil and in writing where you can.
- Consider a written parenting agreement, and ask a lawyer to review it before you sign.
- Ask about family dispute resolution as a way to settle plans outside court.
- If you plan to move after an agreement or order is in place, prepare written notice of at least 60 days.
If you are worried about safety, speak to a lawyer promptly about your options.
Frequently asked questions
If I move out, do I lose my rights as a parent?
Not by moving out alone. Each parent who lived with the child is a guardian, including after separation, and moving out does not itself end guardianship. An agreement or order can change this.
Can I move to another city with the kids without telling my ex?
When a written agreement or order is in place, a guardian planning to relocate must give at least 60 days' written notice if the move can significantly affect the child's relationship with another guardian. If nothing is in place yet, it depends on the facts, so get legal advice first.
What does the court look at in parenting decisions?
The parties and the court must consider the child's interests only, including all of the child's needs and circumstances. Under the Divorce Act the court also considers only the child's interests when making a parenting order.
Is there a deadline to make a parenting or child support claim?
Child support and parenting claims are not subject to the two-year limit that covers property, pension and spousal support claims. Even so, delay can make things harder, so it is sensible to seek advice early.
Sources
- Family Law Act, Part 5, s.90 — bclaws.gov.bc.ca
- Family Law Act, Part 4, s.44 — bclaws.gov.bc.ca
- Province of British Columbia – Is an agreement as good as a court order? — www2.gov.bc.ca
- Family Law Act, ss.44(4) and 148(3) — bclaws.gov.bc.ca
- Province of British Columbia – Do I need a lawyer to separate or divorce? — www2.gov.bc.ca
- Divorce Act, s.16(1) — Justice Laws (federal)
- Province of British Columbia – Does the Family Law Act apply to me? — www2.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
An uncontested divorce with us is from $2,126.88, tax included. Third-party fees are extra.