Relocation: Applying to Relocate and Objecting to Relocation

Planning to move to another province after separation from your child’s other parent? Whether it is for a new job, to be closer to family, or for a fresh start, it is important to assess how the move might affect your children and their relationship with their other parent, especially if there is a parenting or child support order in place.

While adults in Canada are generally free to relocate, moving with children involves additional legal considerations. Even in the absence of a previous court order in relation to the child, the court will still consider the reasons for the move and whether it is in the best interests of the child, not whether the parent would relocate without the child.[1]

Where a court order grants the other parent access or parenting time, relocation may require either their consent or permission from the court. In all relocation cases, the primary focus and concern is the best interests of the child, not just the preferences of the relocating parent.

This blog post provides an overview of relocating with children, including the proper requirements for relocation and how to object to a relocation. Before making any big decisions, it is a good idea to consult a lawyer to have a good understanding of your legal obligations.

What is considered relocation?

As defined in section 65 of the BC Family Law Act, relocation is a change in the child’s or guardian’s residence that could reasonably be expected to have a significant impact on the child’s relationship with the other guardian or other people who may have a significant role in the child’s life. This applies when a child’s guardian plans to relocate themselves, the child, or both and there is a prior written agreement in respect to parenting arrangements or contact with the child.

Relocation can include local moves, such as a change in the child’s residence that is unlikely to impact the other guardian’s parenting time. It can also include longer distance moves, like to another province, that may significantly affect the child’s relationship with the other guardian.

Is notice required?

Under the BC Family Law Act and the Divorce Act, written notice of relocation must be given at least 60 days prior to the proposed relocation to all other guardians and anyone with parenting time, decision-making responsibility, or contact with the child.[2] The notice requirement applies to any type of move, whether local or to a different province. The notice must include the proposed relocation date, new address, and contact information. It must also include a proposal for how parenting time, decision-making responsibility, or contact may be exercised.[3]

An application to waive the notice requirement may be made if notice cannot be given without incurring a risk of family violence or if there is no longer any relationship between the child and the other guardian. This type of application for exemption may be made in the absence of any other party.[4]

Objecting a relocation

If the notice requirement is satisfied, the child’s guardians and people who have contact with the child must use their best efforts to resolve any issues that may result from the proposed relocation. If notice is properly given or the relocation is authorized by the court, then the relocation may take place after the date set out in the notice, unless the other guardian files an order to prohibit the relocation.[5]

If a guardian wants to object to the relocation, they may file an order to prohibit the relocation. This objection must be completed within 30 days of receiving the notice of relocation. To object a relocation, you must complete an “objection to relocation” form and provide it to the other guardian or apply to the court for an order to prohibit the relocation. In the objection to relocation form, you must explain that you object to the relocation, the reasons why you object, and your views on the proposal for parenting time, contact, and decision-making responsibility. If an objection is filed, the parties may need to attend a court hearing to determine if the move is in the best interest of the child.

Who has the onus to prove that the move is in the best interest of the child?

Generally in Canada, the onus to prove that the move is in the best interest of the child is on the party who intends to relocate, they have the burden of proving that the move is in the best interest of the child.[6] Different provinces may have different rules for who has the burden to prove this.

Specifically in BC, the court may also consider the current parenting time for who has the onus to prove whether the move is in the best interest of the child. If the guardians do not have equal parenting time and the relocating guardian has the majority of parenting time, the relocating guardian must satisfy the court that the relocation proposed is made in good faith. They must also propose reasonable arrangements to preserve the relationship between the child and the other guardian, people who are entitled to contact with the child, and other people who have a significant role in the child's life. If the court is satisfied with these factors, the relocation will be considered to be in the best interests of the child. The onus is then on the person who is objecting to the relocation to prove to the court that the relocation would NOT be in the child’s best interest.[7]

If the guardians have equal or similar parenting time in BC, the guardian who is proposing the relocation has the onus to prove all the same factors as above, and that the relocation is in the best interest of the child.[8]

What are the factors that the court considers?

While the best interest of the child remains the most important factor, additional factors that the court considers for relocation are codified in the Divorce Act as follows:[9]

-          reasons for relocation,

-          impact of the relocation on the child,

-          the amount of time spent with the child by each person who has parenting time or their level of involvement with the

child,

-          whether the person who intends to relocate the child complied with any notice requirements, provincial family law

legislation, orders, arbitral awards, or agreements,

-          the existence of an order, or an agreement that explicitly states where the child should reside,

-          how reasonable is the proposal regarding travel expenses and decision making for the intended relocation

-          whether each person who has parenting time or decision-making responsibility complied with their obligations under

family law legislation (orders, arbitral awards, agreements, likelihood of future compliance)

It is important to note that a factor that is NOT considered is whether the parent who is intending to relocate would relocate without the child or not relocate at all if the relocation is prohibited or denied.[10]

Gordon v Goertz factors

Prior to the 2021 amendments to the Divorce Act, there were no codified factors for relocation. Instead, the court relied on the framework established in the leading case of Gordon v Goertz to assess relocation cases. While the Divorce Act has now codified and refined these factors, the court may still consider the factors from Gordon.

From Gordon, the parent making the application must first demonstrate that the relocation would demonstrate a material change in the circumstances affecting the child. If that is met, the judge then considers the best interests of the child and the following factors and unique circumstances to each case:[11]

-          the existing custody arrangement and relationship between the child and the custodial parent,

-          the existing access arrangement and the relationship between the child and the access parent,

-          the desirability of maximizing contact between the child and both parents,

-          the views of the child,

-          the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to

meet the needs of the child,

-          disruption to the child of a change in custody,

-          disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

If relocation is permitted

If the court permits the relocation, a relocation order may be made and the relocation can take place. In making this order, the court must try to preserve any parenting arrangements that were previously made under any original parenting agreements or orders.

Do you want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

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[1] BC Family Law Act, section 46

[2] BC Family Law Act, section 66

[3] Divorce Act, section 16.9(2)

[4] BC Family Law Act, section 66(2)

[5] BC Family Law Act, section 67

[6] Divorce Act, section 16.9(1)

[7] BC Family Law Act, section 69(4) and section 69(5)

[8] BC Family Law Act, section 69(5)

[9] Divorce Act, section 16.92(1)

[10] Divorce Act, section 16.92(2)

[11] Gordon v Goertz [1996] 2 SCR 27, at para 49