A new job, a new partner, or the support of family in another city can make a move feel essential. When a child’s other parent or guardian has an ongoing relationship with the child, though, the move becomes a legal question. Both British Columbia’s Family Law Act and the federal Divorce Act set out a specific framework for relocation, starting with written notice at least 60 days before the proposed move. Who has to prove what depends heavily on the existing parenting arrangement, and the court looks closely at the reasons for the move, at whether reasonable arrangements can preserve the child’s relationship with the other parent, and above all at whether the move is in the child’s best interests.
In this blog, we explain the notice and objection process, the legal tests that decide a relocation application in British Columbia, and what both the relocating and the non-relocating parent should know before a dispute arises. The Supreme Court of Canada’s restatement of the relocation framework in Barendregt v. Grebliunas, 2022 SCC 22, is the subject of our upcoming companion post.
What Counts as a “Relocation” Under BC Family Law?
A relocation is a change in where a child or a guardian lives that can reasonably be expected to have a significant impact on the child’s relationship with a guardian or another person who plays a significant role in the child’s life. That is the definition in section 65 of the Family Law Act, and section 2(1) of the Divorce Act is to similar effect. Distance alone is not the test: a move within the Lower Mainland that makes a weekday parenting schedule unworkable can qualify, while a longer move that leaves the schedule intact may not.
The relocation division of the Family Law Act (sections 65 to 71) applies only where a written agreement or court order about parenting arrangements or contact is already in place. Where there is none and a parenting application is before the court, section 46 governs: the court weighs the reasons for the move within the ordinary best-interests analysis, as the BC Court of Appeal recently did in the case discussed in our post on why relocation is more than a return order. Married spouses who are divorcing or divorced may proceed under the Divorce Act; the Family Law Act applies to all guardians in British Columbia, married or not. The two statutes are closely aligned, but they differ on the burden of proof.
How Much Notice Do You Have to Give Before Moving With a Child in BC?
A guardian who plans to relocate must give every other guardian, and every person who has contact with the child, at least 60 days’ written notice of the date of the move and the proposed location. That is the minimum under section 66 of the Family Law Act. Section 16.9 of the Divorce Act also requires the notice to be in the prescribed form and to include the new address and a proposal for how parenting time, decision-making responsibility or contact could be exercised after the move. Under either statute, a notice that arrives with a concrete parenting proposal is far more persuasive than a bare statement of intent, because the reasonableness of that proposal is one of the factors the court weighs.
The notice starts a second clock. Under section 68 of the Family Law Act, the relocation may proceed on or after the date in the notice unless another guardian files an application to prohibit it within 30 days of receiving the notice. Section 16.91 of the Divorce Act is to the same effect: the move may go ahead if the court authorizes it, or if no objection is made within 30 days, whether in the prescribed form or by a court application, and no order prohibits it. Missing that window can mean the move happens without any court weighing in, while giving proper notice is itself one of the good-faith factors in the moving parent’s favour.
The Family Law Act allows the court to exempt a guardian from all or part of the notice requirement where notice cannot be given without a risk of family violence, or where there is no ongoing relationship between the child and the other guardian; the Divorce Act lets the court waive or modify its notice requirements, including where there is a risk of family violence. Under both statutes that application can be made without notice to the other party. These without-notice applications are where family violence and relocation law intersect, and they often proceed alongside an application for a protection order.
Who Has to Prove the Move Is in the Child’s Best Interests?
It depends on how parenting time is currently shared, and the two statutes allocate the burden differently.
Under section 69 of the Family Law Act, if the guardians do not have substantially equal parenting time, the relocating guardian must satisfy the court that the move is proposed in good faith and that they have proposed reasonable and workable arrangements to preserve the child’s relationships with the other guardian, with anyone entitled to contact, and with other significant people in the child’s life. Once those two things are shown, the relocation must be considered to be in the child’s best interests unless the other guardian satisfies the court otherwise. If the guardians do have substantially equal parenting time, the relocating guardian must prove all three things: good faith, workable arrangements, and that the move is in the child’s best interests.
Section 16.93 of the Divorce Act takes a three-way approach, and it turns on the existing order, arbitral award or agreement rather than on the pattern of care alone. Where the parties substantially comply with an order, award or agreement giving the child substantially equal time with each of them, the relocating parent must prove the move is in the child’s best interests. Where they substantially comply with an order, award or agreement under which the child spends the vast majority of their time with the relocating parent, the objecting parent must prove the move is not in the child’s best interests. In every other case, both parties carry the burden. Under section 16.94, the court may decline to apply the first two rules where the order in question is only an interim one.
In practice, the parent who can document a history of primary care, or of true shared parenting, starts in a stronger position: under the Family Law Act the burden turns on the parenting time the guardians actually have, and under the Divorce Act on whether an order, award or agreement is being substantially followed. That history is proven with calendars, school and medical records, messages and the actual pattern of care over the preceding months.
What Does “Good Faith” Mean in a Relocation Case?
Good faith is about the reasons for the move and the way it is proposed, not whether the court would have made the same choice. Section 69(6) of the Family Law Act directs the court to consider the reasons for the proposed relocation; whether it is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including emotional well-being and financial or educational opportunities; whether the required notice was given; and any restrictions on relocation in an existing agreement or order. Section 16.92 of the Divorce Act folds the same ideas into its best-interests factors and adds whether the proposed parenting arrangements are reasonable given the new location and travel costs, and whether each parent has complied with their existing obligations.
Both statutes also prohibit the court from considering whether the guardian would still move if the child’s relocation were refused. In Barendregt, the Supreme Court of Canada explained that considering the question can place a parent in a double bind, and confirmed that a moving parent’s reasons matter only to the extent they bear on the child’s best interests: a parent need not prove the move is justified, and the absence of a compelling reason does not count against them unless it reflects on their ability to meet the child’s needs.
What This Means for Parents in British Columbia
For the parent who wants to move, the work begins long before the notice is served. The notice should be in writing, give at least 60 days, name the destination and set out a detailed proposal for parenting time, travel and communication. The reasons for the move should be documented in terms of the child’s quality of life: the job offer, the housing, the school, the family support. Where the guardians do not have substantially equal parenting time, a relocating guardian who shows good faith and workable arrangements has the benefit of section 69(4) of the Family Law Act: the relocation must be considered to be in the child’s best interests unless the other guardian satisfies the court otherwise.
For the parent who objects, the 30-day window after receiving notice is the deadline for stopping the move before it happens. The application to prohibit the relocation should be supported by evidence of the current pattern of care, the practical effect of distance on the child’s relationships and routines, and any concerns about the realism of the proposed arrangements. Where the fear is that a child will be taken out of the province and not returned, section 64 of the Family Law Act allows the court to order that a child not be removed from a specified geographic area and to require the surrender of passports or the posting of security. Those orders address removal and non-return rather than a planned relocation, and they are often sought urgently.
Where family violence is part of the picture, the notice requirement can be lifted on a without-notice application, both statutes require the court to consider the violence in deciding where the child should live, and the Supreme Court of Canada has described it as a significant factor in relocation cases. A protection order and a relocation or non-removal order may need to be pursued at the same time, often within days of separation. These are the circumstances in which early advice on parenting time and decision-making responsibility has the greatest effect on the outcome.
Frequently Asked Questions About Relocating With a Child in BC
How much notice do I have to give before moving with my child in BC?
At least 60 days’ written notice to every other guardian and every person with contact, stating the date of the move and the proposed location. The requirement comes from section 66 of the Family Law Act where a written agreement or parenting order exists, and from section 16.9 of the Divorce Act in divorce proceedings, which also requires a proposal for parenting time or contact after the move. The court can waive notice where giving it would create a risk of family violence.
What happens if I receive a relocation notice and do nothing?
Under section 68 of the Family Law Act, the relocation may proceed on or after the date in the notice unless another guardian files an application to prohibit it within 30 days of receiving the notice. Section 16.91 of the Divorce Act likewise allows the move if no objection is made within 30 days and no order prohibits it.
Who has to prove that the move is in the child’s best interests?
It depends on the existing parenting arrangement. Under the Family Law Act, a relocating guardian without substantially equal parenting time must show good faith and workable arrangements, after which the other guardian must prove the move is not in the child’s best interests; a guardian with substantially equal parenting time must also prove that it is. Under the Divorce Act, where the parties substantially comply with an order, award or agreement, the burden falls on the relocating parent if it provides for substantially equal time, and on the objecting parent if it provides that the child spends the vast majority of their time with the relocating parent; in every other case both parties carry the burden.
Can the court consider whether I would move without my child?
No. Section 69(7) of the Family Law Act, section 46(2) of the same Act where no order exists, and section 16.92(2) of the Divorce Act all prohibit the court from considering whether a parent would still relocate if the child’s move were refused. The Supreme Court of Canada explained in Barendregt v. Grebliunas that considering the question can place parents in a double bind. In assessing the merits of a relocation application, there is no presumption in favor of the status quo.
Can I stop the other parent from taking my child out of British Columbia?
If the concern is a planned relocation with notice, the remedy is an application to prohibit the move within 30 days of receiving the notice. If the concern is that a child will be removed from BC and not returned, section 64 of the Family Law Act allows the court to order that the child not be removed from a specified geographic area and to require the surrender of passports or the posting of security. Where a child has already been taken abroad, our post on the Hague Convention and international child abduction explains the return process.
Contact Meridian Law Group for Exceptional Family Law Advice in Vancouver
Relocation disputes run on short clocks: a 60-day notice period, a 30-day window to object, and hearings that are often decided on the evidence assembled in the first few weeks. The family law team at Meridian Law Group acts for both relocating and non-relocating parents, including on urgent and without-notice applications, orders to prevent a child’s removal from British Columbia, and protection orders. Ibrahim Khan has trial experience in parenting and relocation disputes, and Paul Harden, a Principal of the firm, has practised litigation in British Columbia since 2013. Meridian Law Group proudly represents clients in family law matters across B.C., including West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. Contact us online or call (604) 687-2277.
About the author: Paul Harden. Paul Harden is a Principal at Meridian Law Group in Vancouver. He holds a BA in Philosophy from the University of Calgary (2004) and a Juris Doctor from the University of British Columbia (2012), and was called to the British Columbia Bar in 2013. His practice spans estate litigation, business and property disputes, general civil litigation, insurance claims, and serious personal injury. He is a member of the Canadian Bar Association, the Law Society of British Columbia, and the Trial Lawyers Association of BC.
About the author: Ibrahim Khan. Ibrahim Khan is a lawyer at Meridian Law Group in Vancouver whose practice includes family law, civil and commercial litigation, and estate litigation. He holds a Bachelor of Arts in Criminology with a certificate in legal studies from Simon Fraser University (2018) and a Juris Doctor from the University of Saskatchewan (2023). Ibrahim has represented clients before the Provincial Court and the Supreme Court of British Columbia, including at trial in parenting and relocation disputes, and is a member of the Canadian Bar Association and the Law Society of British Columbia.
