Relocating with children can be complicated after a divorce or separation. If you’re considering relocating with your children, it’s important to understand your obligations to the other parent before you make plans to move. If you choose to relocate without fulfilling your legal obligations, a court may order you to return with your children, which can be costly, inconvenient, and detrimental to your children’s sense of stability. A consultation with an experienced family lawyer is the best way to ensure that you properly navigate the legal system and protect your children’s best interests.

Read below to learn more, or click here to ask us your questions about relocation.

What Is Child Relocation?

Child relocation is different from simply moving with your child. Moving refers to a change in residence that does not substantially affect the other parent’s parenting time or contact arrangements. For example, moving to a new house within the same city and school district is not considered a “relocation,” and you do not require the other parent’s consent. However, a move may be regarded as a relocation if it will significantly impact the child’s life – as in the case of changing schools, communities, or a move that is likely to affect the parenting schedule. 

Considerations When Relocating with Your Child

Relocation applications are challenging and complicated. The legislation that applies depends on whether you and your former spouse were married, and the legal test that applies will depend on several factors, such as whether there are any existing court orders or written agreements regarding parenting arrangements and whether you are the children’s primary caregiver, or if you have a substantially shared parenting arrangement with the other parent. 

Parents in British Columbia are not permitted to relocate with their children unless they provide at least 60 days’ written notice to all other guardians and, if applicable, anyone with an order granting them “contact” with the children. Under BC’s Family Law Act, you must also provide notice to anyone who has “a significant role in the child’s life,” whether or not they have an order for contact time. 

An order confirming the other parent’s guardianship is not necessarily required because parents are generally guardians if they lived with their children prior to separation. Even if the other parent did not live with your children prior to separation; you must give the other parent proper notice if he or she has been involved in your children’s lives and has been regularly caring for them since separation. 

Providing notice may not be required if doing so would put you or your children at risk of family violence or if there is no ongoing relationship between your children and their other parent. If you are unsure about whether notice is required, it’s best to consult with a family lawyer, who can provide you with certainty based on your own situation.

Proper written notice of a relocation must include the date that you plan to relocate and the location that you plan to relocate to. It should also include a proposal for facilitating the other parent’s parenting time or contact with the children. Under both the Divorce Act and the Family Law Act, you must give at least 60 days’ written notice of your plan to relocate, but if you do not receive an objection in accordance with the applicable legislation within 30 days, you are free to relocate with your children on or after the date proposed in your formal notice.

Relocation under the Divorce Act

If the Divorce Act applies to your relocation because you and your former spouse were (or are) married, you will not be permitted to relocate if any other person with parenting time, decision-making responsibility, or contact with your children under a contact order, files an application to prevent the relocation, or provides you with a written response that includes: (a) a statement that he or she objects to the proposed relocation; (b) the reasons for the objection; and (c) his or her views on your proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be.

If the other parent objects to your relocation and you need to go to court (or arbitration), the judge (or arbitrator) will need to determine whether it is in your children’s best interest to relocate with you or stay behind with their other parent or guardian. 

Section 16(1) of the Divorce Act outlines the factors that judges and family law arbitrators must consider when deciding what is in the best interests of children. Under section 16.92(1) of the Divorce Act, when deciding whether it is in your children’s best interest to relocate with you or remain where they are, judges and arbitrators in British Columbia must also consider:

• ​​The reasons for the relocation;
• The impact of the relocation on the child;
• The amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
• Whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9 of the Divorce Act, Division 6 of the BC Family Law Act, an existing court order, arbitral award (made in arbitration), or written agreement between the parties;
• The existence of a court order, arbitral award, or written agreement that specifies the geographic area in which the child is to reside;
• The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
• Whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under the Divorce Act, BC Family Law Act, an existing order, arbitral award, or written agreement, and the likelihood of future compliance.

Relocation under the Family Law Act

If the Family Law Act applies to your relocation because you and your former spouse were never married, section 68 of the Family Law Act states that only a guardian can object to your proposed relocation, and if the other guardian does not file a court application to prevent your relocation within 30 days of receiving your formal written notice, you may relocate with your children on or after the date provided in your written notice. In other words, a written or oral statement from the other parent expressing his or her objection is not enough to prevent you from relocating. Pursuant to the Family Law Act, it is the other parent’s obligation to file a court application in Provincial Court or Supreme Court to prevent the relocation within 30 days of receiving your written notice. 

Despite the wording of section 68 of the Family Law Act, many parents choose to file an application seeking permission to relocate if the other parent expresses an objection but does realize that he or she is required to file an application to prevent the relocation. It may be tempting to relocate in the absence of an application, but there is always a risk that the other parent will file an application after realizing their error, and you may be ordered to return with your children if the judge determines that it is in the children’s best interest. However unlikely this may be, many parents like to ensure that their ducks are in a row because no one wants to go through the stress of moving with children, only to be ordered to return. 

When making orders regarding parenting arrangements, the courts will not consider whether their order would be “unfair” or an inconvenience to either parent. A judge might acknowledge an inconvenience or express sympathy for a parent, but judges are required to only consider what is in the best interests of the children when making any orders regarding parenting arrangements. Section 37 of the Family Law Act lists the relevant factors that the judge will consider. 

If there is a dispute about relocation, coming to a mutual agreement in mediation is often an ideal way to resolve the issue amicably. If that isn’t possible, you may need to attend arbitration or obtain a court order permitting you to relocate with the children. 

Going to Court or Arbitration

Only a judge or a family law arbitrator can make a binding decision about whether children can relocate with a parent in the event of a dispute. However, it’s important to note that they can only decide where your children live. They cannot dictate where any adult chooses to live. You can choose to move to the other side of the world if you like, and no one can stop you. An arbitrator or judge’s job is to determine whether it would be best for your children to go with you or stay behind. 

The legislation prohibits judges (and arbitrators) from deciding that your children must stay behind under the assumption that you will not move if the children are not permitted to move. For example, if a judge determines that you have always been the children’s primary caregiver and it’s in their best interest to remain primarily in your care because the other parent is unable or unwilling to provide a nurturing and safe home for them, it would be a legal error for the judge to order the children to remain in British Columbia because the judge knows that you won’t leave the children behind with the other parent.  

Under the Family Law Act, you will be required to demonstrate to the judge or arbitrator that: 

(1) your proposed relocation is made in good faith. In other words, that you’ve met your legal obligations to provide notice and you aren’t relocating simply to alienate the other parent. You may need to demonstrate that your proposed relocation is likely to enhance your and/or your children’s general quality of life; and 

(2) you’ve proposed reasonable and workable arrangements to preserve the relationship between the children and their other guardians, or anyone who plays a significant role in the children’s lives, including extended family members, whether or not they have an order for contact time with the child. 

Under both the Divorce Act and the Family Law Act, if you and the other parent have substantially shared parenting time (i.e. you both care for the children between 40% to 60% of the time), it will be your burden to prove to the court that the proposed relocation is in your children’s best interest. Conversely, if you have primary care of the children (i.e. you care for them more than 60% of the time), it will be the other parent’s burden to prove to the court that the proposed relocation is in not the children’s best interest, as long as you can demonstrate that you have acted in good faith and proposed workable arrangements to facilitate the children’s relationship with their other parent and extended family members. 

An experienced family lawyer can assist you in ensuring that you follow the correct legislation and take all of the right steps to maximize your chance of success in the event that you need to go to court or arbitration. 

Relocating in a Nutshell

If you want to relocate with your children:

Consider whether it’s in the children’s best interest: Give careful thought about your reasons for wanting to relocate and try to objectively assess whether it is in your children’s best interest. Regardless of how you may feel about your former spouse, if your children have a close bond with their other parent and your relocation will make it too time consuming or expensive for the other parent to maintain that bond, you may want to reconsider your plans. Having strong and healthy relationships with both parents provides children with security and stability. It’s important to weigh the benefits of moving with the negative impacts the relocation may have on the children’s relationships with their other family members, and in particular, their other parent. 

Seek legal advice: Relocation issues are rarely resolved easily and quickly by consent. Before you speak to your children or your former spouse about your plans, consult with an experienced family lawyer, who can advise you about what to say and what not to say. The legal process can be confusing, so it’s important that you understand your rights and obligations before you take any steps that could be detrimental to your case. 

Talk to the other parent or guardian: Unless your relocation is urgent and time-sensitive, or if speaking with the other parent would reasonably put you or the children at risk of harm, it’s ideal to start an open dialogue with your former spouse before providing formal written notice or filing court applications. It’s unlikely that the other parent will be eager for you to decrease their parenting time by moving to another city with the children, so try to be empathetic and put yourself in the other parent’s shoes. You may be able to offer something in exchange for their consent, such as reduced child support to account for their travel expenses to see the children, or you could offer to contribute towards their travel costs. Let the other parent know why you think the relocation is in the children’s best interest and acknowledge that you’ve considered the potential negative impacts that could result from the relocation.   

Provide formal written notice in accordance with the relevant legislation: You must provide notice in writing at least 60 days before your proposed move. The notice should include the date of the proposed move, the location, the reason(s) for the move, and proposed arrangements to facilitate your former spouse’s parenting time. Despite the fact that you are providing 60 days’ notice, your former spouse will have 30 days to consider their options and seek legal advice before responding. If you do not receive an objection within 30 days, the legislation says that you can relocate with the children on or after the date stated in your written notice. 

Consider mediation and/or arbitration: If the other parent objects to your relocation and you are determined to relocate with your children, consider proposing mediation and/or arbitration. A combination of mediation and arbitration (referred to as “med-arb”) involves hiring a mediator to help you reach an agreement; but if an agreement isn’t possible, the mediator will become an arbitrator and can make a binding decision about whether the children should be able to relocate or not. This provides you and the other parent with an opportunity to resolve the issue amicably, but ensures that the issue will be settled one way or another without an expensive trial. Mediation can lead to undesireable outcomes when one of the parents is submissive and the other is a bully. Arbitration (or med-arb) ensures that the outcome will be based on the best interests of the children rather than which parent can be the most stubborn and authoritative. If you and the other parent are unable to reach an agreement, nothing said or offered in mediation can be used against either parent in court or arbitration (unless you and the other party agree otherwise in a med-arb agreement). 

File a court application: Parents can be required to attempt mediation but they cannot be forced to agree to arbitration. If both parents have their heels firmly dug into the ground and one or both is not interested in arbitration, a court application may be unavoidable. Unlike mediation and arbitration, which is more flexible and less formal, court is a formal process with rules and prescribed procedures. It is strongly advisable to retain an experienced family lawyer to represent you in an application to relocate, whether you’re the parent who wants to relocate, or the parent who wants to prevent a relocation. An application to relocate will generally require at least two days of trial and will likely cost each party a minimum of $10,000.00 (unless either party qualifies for Legal Aid).