Should I stay or should I go now?

By office@portsidelaw.caRelocation

Noémie Gagnon-Bergeron- Published September 27, 2023

BRITISH COLUMBIA’S LAW ON CHILD RELOCATION

I want to relocate with my child, but the other guardian isn’t letting me. What do I do? Do I need their consent to move? What are the chances the court will let me move with my child despite their reluctance? 

I think the other guardian of my child is planning to relocate with our child, but I do not want that to happen! How can I prevent my child from being relocated? Will a judge really let the other guardian relocate with the child if I don’t consent? 

These are all very common questions that we get here at Portside Law, and like most issues in Family Law, the answer is: IT DEPENDS! 

Don’t worry, I won’t leave you hanging. In this blog post I take a shallow dive (not a deep dive, otherwise I’d be writing a textbook and not a blog post) into what the law says on whether / when a guardian can relocate with their child if they have another guardian in their life that opposes the relocation.

MARRIED OR NOT?

First things first, you need to know that the law is slightly different depending on whether you are married or not. By married, I mean you have a valid marriage certificate. Unlike my previous blog posts where I talk about how spouses are spouses, regardless of whether it’s by “common law” or through marriage, in this blog post there is a specific difference between whether the guardians of the potentially relocating child are married or not. 

If you have or had a marriage certificate (i.e. this applies even if you’re divorced), the law that applies to you is under the Divorce Act. If you were never married to the other guardian of the child, the law that applies to you is under the Family Law Act. 

DIVORCE ACT

Section 16.9(1) of the Divorce Act outlines the most important requirement to relocation: notice. The guardian who wishes to relocate the child must give notice to any person who has parenting time, contact, or decision-making responsibility for the child. This notice must be given at least 60 days prior to the anticipated date of relocation. Sounds simple, but there’s a bit more to the notice requirement. It must include the following information: 

  1. the expected date of the relocation;
  2. the address of the new place and contact information for the child;
  3. a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised after the relocation; and
  4. any other information prescribed by the regulations. 

Any of the people notified can oppose the relocation, but they must do so within 30 days after the day they received the notice. 

If notice is given and the other guardian opposes, then section 16.93(1)-(2) state that the person who has to prove that either the child should move or that the child shouldn’t move will depend on the allocation of parenting time. If the guardians share parenting time (substantially equally), then the guardian who intends to move must prove that it is in the child’s best interest. If the parties do not share equal parenting time, then it is the person who is objecting who must prove that it is not in the child’s best interest to relocate.

FAMILY LAW ACT

The first step under the Family Law Act is the same as in the Divorce Act; namely to determine whether the guardians have “substantially equal parenting time” or not. If they do, then the presumption is that it is not in the child’s best interest to move. If the parenting time is not “substantially equal,” as in the parent wishing to move spends more time with the child already, then the presumption is that the child should be able to move. 

You might be thinking: “well that doesn’t sound different at all.” If the story ended there then you’d be right, but the Family Law Act includes additional requirements on the relocating guardian. First, the proposed relocation must be made in good faith. What does this mean? Well, funny you should ask, because apparently even most B.C. judges don’t really know. According to Professor Thompson in “Legislating About Relocating”, this requirement has been misinterpreted by many B.C. courts. The legislature only intended the “good faith” requirement to be an obviously necessary first step, in that the relocating guardian just needs to show that there is a good or ‘sound’ reason for the move. 

The same logic goes for the second requirement; which is that the relocating guardian must have proposed a reasonable and workable arrangement to preserve the relationship between the child and the child’s other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child’s life. According to Professor Thompson, this requirement was “intended to encourage the relocating parent to make some kind of early sensible offer to the remaining parent, in the interests of lowering the temperature and encouraging settlement.” 

Sadly, the case law suggests (see F.K.L. v D.M.A.T., 2022 BCSC as an example) that these requirements impose a much higher burden on the relocating parent than what was intended. The result is that B.C. Courts are less pro-move than they were before. 

In short, this means that unlike other areas of family law, being married or not could have an important impact on how judges approach your case when it comes to relocation. If you fall under the Divorce Act and you are trying to relocate, you might not have as big of a hurdle to jump over. If you were never married to the child’s other guardian, then a B.C. judge might (wrongly) be scrutinizing your case a bit more. 

I’VE GIVEN OR RECEIVED NOTICE, NOW WHAT?

Now you go to court. Alternatively, you can go to mediation and enter a mediated agreement with the other person. If there’s any chance of reaching an agreement between you and the other person, try this route first. If agreement is simply not possible, or if going to mediation would be inappropriate in your case, then a judge will have to make the decision. 

You’re probably wondering what the chances are that a judge will make an order allowing or prohibiting the relocation given everything you’ve just read. Well, as previously alluded to, the requirement to give notice is extremely important, regardless of whether you were married or not. If notice is given, and that notice has met the requirements (under the Family Law Act or the Divorce Act), the next most important factor is whether there is substantially equal parenting time or not, because as previously mentioned, this determines who has the burden to prove to the judge whether the child should relocate or stay. 

In all cases, regardless of whether it’s under the Family Law Act or the Divorce Act, the judge must determine whether relocation is in the best interests of the child. The factors that ought to be considered in this determination are set out in section 37 of the Family Law Act and section 16(3) of the Divorce Act. The Supreme Court of Canada (SCC) recently clarified the court’s position in their decision in Barendregt v. Grebliunas, 2022 SCC. Essentially, the SCC decided to ensure that the “common law framework” on the issue that was established in Gordon v. Goertz [1996] 2 S.C.R. 27 now reflects the legislation. In order to do so, they commented and adapted the 5 factors courts must keep in mind, in addition to the best interests of the child factors, when making a judgement in a relocation case. The analysis of those 5 factors are very briefly outlined below: 

  1. The “great respect” principle: I won’t dive into the history behind this principle, but moving forward the important factor courts must keep in mind is the history of the child’s caregiving. 
  2. The reasons for relocation: The court will consider why a guardian is relocating, but only within the context of how that fits into the child’s best interests.
  3. The “maximum contact” principle: now being referred to as the “parenting time factor,” the court will consider the extent to which relocation will affect the child’s parenting time with their guardians after relocation, and whether that change is in the child’s best interest or not. 
  4. A guardian’s testimony about whether they will relocate regardless of the outcome of the Relocation Application: The legislation is clear on this point as was the SCC in this case – this is not a factor. Actually, not only is it not a factor, but there is a positive obligation on the court to not consider this. In other words, the court cannot take into account whether the moving guardian will relocate with or without the child in determining whether the child’s relocation would be in their best interest.  
  5. Family violence: Findings of family violence are a crucial consideration in the best interests analysis.

As you can see, and as with most things in family law, so much rides on the specific facts of your case. It is almost impossible to determine with any certainty what a judge will decide. What I can tell you though is that we do have some noticeable trends to keep in mind. According to Professor Thompson’s research on relocation cases since the new amendments to the legislation have been in force, 28 out of 32 cases where the relocating guardian had the majority of the parenting time was allowed to relocate, but only 3 of out of 19 cases where the parenting time was substantially equal resulted in permitted relocation. Don’t let these numbers fool you though, every case is unique and allocation of parenting time is only 1 of many factors at play. 

If you are wanting to relocate with your child, or if the other guardian of your child wishes to relocate and you do not want that to happen, contact a lawyer right away. The lawyers here at Portside Law are experienced in these types of cases, and we would be happy to help you navigate through this process. 

Disclaimer – By contacting Portside Law Corporation through email, phone or direct message does not establish an attorney-client relationship. An attorney-client relationship is formed once both parties agree in writing to such a relationship. The information found in this document is of general nature and is not intended to be legal advice. Please contact our office to speak further about any particular legal question you may have.