“I Want To Move…And He Won’t Let Me Take the Kids!”

By Monica McParland
Categories: Blog, Family Law

Family Law disputes often arise when one parent wants to move out of town with the children. The move may be motivated by a new relationship, a better job, or by a desire to be closer to family support. Frequently the other parent objects to the move since it could hamper their ability to see the children, and may negatively impact his or her relationship with the children. In British Columbia, the law takes two different approaches to resolving these disputes depending on the statutory framework that applies. The Divorce Act applies only to married spouses. The Family Law Act may apply to both married spouses and common law partners. However if a married spouse pleads the Divorce Act in court, then the procedure under the Divorce Act is paramount.

The Rules under the Divorce Act

Relocation applications under the Divorce Act involve one parent applying to vary an order regarding “custody” or “access”. Even if the new destination is only a few hours away, it could frustrate the other parent’s access to the child. Therefore the relocating spouse must apply to the court for an order adjusting the current arrangements to permit the move. The basic starting point is that a child should have as much contact with each parent as is consistent with the best interests of the child. The procedure for relocation applications is summarized as follows:

  • The parent applying for the change must first prove that there has been a “material change in the circumstances” affecting the child.
  • The judge will assess what is in the “best interests of the child”, considering their needs and the ability of the each parent to satisfy those needs.
  • The relocating parent should set out how they intend to facilitate the other’s parent’s ongoing access with the child.
  • The focus is on the best interests of the child, not the interests or rights of the parents.

It is difficult to predict whether the court will allow a parent to move with the children because the case law has varied widely. Some of the factors that courts have considered compelling are as follows:   

Factors in Favour

Factors Against

  • The objecting spouse does not exercise access with the children on a regular basis
  • There are better job prospects or a guaranteed job at the new location
  • There is a support network of family and friends at the new home
  • There is some benefit at the new home like better schools or medical services
  • There are resources available which would enable the objecting spouse to visit the children frequently
  • The move will damage the objecting spouse’s relationship with the children
  • The children have well established roots in the current community
  • The move is made in an effort to alienate the children from the objecting spouse
  • The move is motivated primarily by the party’s desire to be in a new relationship
  • The court cannot balance the effect of the move by extending time with the other spouse (summer or winter holdiay time).

The Rules under the Family Law Act

The court expects parties to try to resolve any dispute regarding a move on their own accord. However if those efforts fail the court will decide the issue. The court will enquire what efforts the parties have made to try to resolve the issue, so it is a good idea to communicate with the other person in writing and to keep copies of the correspondence.

The Family Law Act deals with proposed changes to a child’s residence in two different ways, depending on whether or not there is a prior written agreement or court order respecting parenting arrangements.

If there is no Order or Agreement in place, a guardian who plans a move may simply apply to the court for relocation, and the court will consider the following:

  • the best interests of the child;
  • the reasons for the change in the child’s residence;
  • the court will not consider whether the relocating guardian would do so without the child.

Although only guardians can seek or object to relocation, the court may forge a pathway to guardianship on an interim basis in order to ensure that a parent who is not a guardian but nonetheless plays a significant role in the child’s life has input into the relocation decision.

If there is a pre-existing Order or Agreement regarding parenting, the process is more complex:

  • Any guardian who plans a move that will have a "significant impact" on the child’s relationship with other guardian(s), or people who play a significant role in the child’s life, must give 60 days’ written notice to all other guardians and persons who have with contact with the child (i.e. Grandparents). Only guardians can formally object; people who merely have “contact” cannot apply to prevent the relocation.
  • A guardian who objects to the proposed move must file an application in court to stop the move within 30 days of receiving the written notice.

If the relocating guardian has the majority of parenting time with the child, he or she must prove the move is proposed "in good faith," and that he or she has proposed "reasonable and workable" arrangements to preserve the child’s relationship with other guardians and persons with significant roles in the child’s life. If both these elements are established the move is presumed to be in the child’s best interests unless the objecting guardian can convince the court otherwise.

By contrast if the moving guardian and the objecting guardian share the child’s time equally or almost equally, then the guardian proposing the move must also prove the move is in the child’s best interests.

This is a complex area of the law and it is often difficult to predict the result of an application to move. Relocation applications are some of the most hotly argued and difficult issues there are in Family Law, and therefore the assistance of a qualified Family Law lawyer is highly recommended.

Contact Monica at 250-869-1120 or mcparland@pushormitchell.com.