In our increasingly mobile world, the reality is that many of us will live in different cities, provinces and even countries in our lifetime. You may desire to move for a new job opportunity, a new relationship, or to be closer to family. If children are involved in the move (relocation), you need to be clear about what your legal rights and responsibilities are.
The Family Law Act sets out very specific legal tests that courts will apply when one parent seeks to move (often called “relocation”) with a child.
Depending on the circumstances, the legal test for relocation is set out in either section 46 or 69 of the Family Law Act.
Section 46: Where Parties do not have an Agreement or Order
Section 46 of the Family Law Act is the section that applies where parties do not have a written agreement or court order setting out the parenting arrangements for a child.
Where parties do not have a prior agreement or court order setting out parenting arrangements, and one party seeks to move with a child, the legal test is whether the move would be in the “best interests” of the child.
If the court does not find that the relocation will be in a child’s best interests, the request to move will be denied.
Section 69: Where Parties have an Agreement or Order
Section 69 of the Family Law Act applies where one party seeks to move with a child, and the parties have a preexisting written agreement or court order about parenting arrangements.
Where the party seeking relocation with a child has “substantially” more parenting time than the other party, the legal test that the court will apply is set out in section 69(4) of the Family Law Act.
This test requires the party seeking to relocate with a child to convince the court that:
- the proposed relocation is made in good faith, and
- reasonable and workable arrangements have been proposed to preserve the relationship between the child and the significant persons in the child’s life.
If a party seeking to move with a child can satisfy the court on these two points, the court will presume that the move is in the child’s best interests, and will agree to the move.
Where the parties have “substantially equal” parenting time, and one party seeks to move with a child, the legal test the court will apply is set out in section 69(5) of the Family Law Act.
Unlike the test in section 69(4), there will be no presumption that the move is in a child’s best interests. Instead, the party requesting the move will need to convince the court that the relocation will be in the child’s best interests. Otherwise, the request to move will be denied.
Section 66: Notice of Relocation and Section 68: Relocation if no Objection
Another important consideration if you want to move with a child is the mandatory notice provision set out in section 66 of the Family Law Act.
Section 66 requires that 60 days’ written notice of the intention to move with a child must be provided to the child’s guardians and other persons who have “contact” with the child. The written notice must include the date and place of the proposed move.
If a child’s guardian receives notice of a proposed move under section 66, and the child’s guardian objects to the move, the child’s guardian must file an application for an order prohibiting the move within 30 days.
If the child’s guardian receives notice, but does not file an application within 30 days, the other party will be free to move with the child.
Family Lawyers with Experience: We Can Help
All of the lawyers at Brown Henderson Melbye have experience assisting clients who wish to move with their child or children. Our team has negotiated many successful moves for our clients, whether the proposed move is back to the Lower Mainland, or as far away as Europe, Australia, or Asia.
When negotiations fail, the lawyers at Brown Henderson Melbye are prepared to appear in court in support of our clients’ applications to be able to move with their child or children.
The lawyers at Brown Henderson Melbye also regularly assist clients who oppose a proposed move. Remember, if you are served with written notice of a proposed move, you only have 30 days to bring an application in court to oppose the move. If you receive that notice, it is your responsibility to act quickly. We encourage you to consult a lawyer in these circumstances.
Relocation cases are not easy cases. Master Keighley, in a 2013 decision of the BC Supreme Court, L.L.J. v. E.J. described the great difficulty the courts have in deciding these kinds of cases:
For good reason, the prospect of a relocation application invokes something akin to dread in some members of the court. Almost inevitably, someone’s heart is broken no matter what the outcome of the application. If the party seeking to relocate is denied permission, plans are shelved, opportunities are lost and the overall welfare of the family, beyond considerations strictly concerned with the best interests of the child, are compromised. If the application is allowed, the party left behind struggles to maintain a relationship with the child often at considerable distance and expense, frequently in circumstances of modest means.
If you are thinking about moving with a child, or you have received written notice of a proposed move, and you oppose the move, we encourage you to talk to a lawyer about your rights and responsibilities.