Child Relocation in BC | Divorce Act and Family Law Act & Their Differences
If you are married and would like to relocate with your child(ren) outside of BC upon separation, you will have access to 2 different set of laws to user for relocation.
It is important to know which law is more in your favour so you can increase your chances of relocation.
While both the Divorce Act (DA) and Family Law Act (FLA) address child relocation, they apply different legal tests and procedures. Here’s a detailed breakdown to help parents understand their rights and obligations.
Table of Contents
- 1 How Does a Parent Provide Notice of Relocation Under the Divorce Act (DA)?
- 2 Meet Our Family Law Team
- 3 How Can the Other Parent Object to Relocation Under the DA?
- 4 What Legal Tests Apply if the Other Parent Objects to Child Relocation?
- 5 How Does a Court Determine a Child’s Best Interests Under the DA?
- 6 How Does Child Relocation Work Under the Family Law Act (FLA)?
- 7 How Can the Other Parent Object to Child Relocation Under the FLA?
- 8 What Legal Tests Apply if the Other Parent Objects Under the FLA?
- 9 Which Legislation Applies to Your Case?
How Does a Parent Provide Notice of Relocation Under the Divorce Act (DA)?
Under section 16.9(1) of the DA, a parent wishing to relocate with a child must notify others with parenting time, decision-making responsibilities, or contact under a court order.
This notice must be provided at least 60 days in advance using a designated Notice of Relocation form.
The notice must include:
- Expected date of relocation
- New address and contact information
- Proposed changes to parenting time and decision-making
- Any other prescribed information
Exceptions to Providing Notice: A court may exempt a parent from giving notice under section 16.9(3) if:
- Notice poses a risk of family violence
- Other specific conditions apply
Learn more about child custody and parenting arrangements under the DA.
How Can the Other Parent Object to Relocation Under the DA?
A parent served with a Notice of Relocation can object by:
- Filing and serving a court application regarding parenting arrangements, or
- Filing and serving an Objection to Relocation form under section 16.91(1)(b)(i).
If no objection or court application is filed, and there’s no court order preventing relocation, the parent may proceed with relocating.
Explore our services on relocation disputes.
What Legal Tests Apply if the Other Parent Objects to Child Relocation?
Chances of success will depend on the parenting time situation:
- Substantially Equal Time: The relocating parent must prove the move is in the child’s best interests (section 16.93(1)).
- Courts often reference DM v EM, 2014 BCSC 2091, which considers 40% parenting time as a guideline for “substantially equal.”
- Majority Time with One Parent: The objecting parent must prove the relocation is not in the child’s best interests (section 16.93(2)).
- Other Cases: Both parties must prove what serves the child’s best interests (section 16.93(3)).
How Does a Court Determine a Child’s Best Interests Under the DA?
The court evaluates all relevant factors, including:
- The child’s needs, age, and development
- Relationships with parents, siblings, and others
- History of care and parenting
- The child’s views, where appropriate
- Impact of family violence, if any
Under section 16.92(1), additional factors include:
- Reasons for relocation
- Impact on the child
- Time spent with the child by each parent
- Reasonableness of the relocation plan
Read more about best interests of the child.
How Does Child Relocation Work Under the Family Law Act (FLA)?
Notice Requirements Under the FLA
A guardian must notify others with parenting time or contact at least 60 days in advance. This written notice should include the relocation date and new location.
Exceptions to Notice: The court may waive notice if:
- The other guardian has no ongoing relationship with the child
- Notice could lead to family violence
Find out about parenting arrangements under the FLA.
How Can the Other Parent Object to Child Relocation Under the FLA?
An objecting parent must file a court application within 30 days of receiving notice. If no objection is filed, the relocating guardian may proceed.
There are no specific forms one needs to fill out. The objection has to be in writing, however.
Learn about your rights in relocation cases.
What Legal Tests Apply if the Other Parent Objects Under the FLA?
The relocating guardian must prove:
- The relocation is proposed in good faith.
- Reasonable arrangements exist to maintain the child’s relationships with others.
If the child spends substantially equal time with both parents, the relocating guardian must also prove the move is in the child’s best interests. Otherwise, the objecting guardian bears this burden.
How Does a Court Determine a Child’s Best Interests Under the FLA?
Factors considered under section 37(2) include:
- The child’s health and emotional well-being
- Views of the child, where appropriate
- Stability and caregiving history
- Impact of family violence
Understand the legal framework for child relocation.
Which Legislation Applies to Your Case?
It is best to consult with a family law relocation lawyer to strategically decide which legislation you should use when deciding to relocate with your children.
Take Action Now
Relocation disputes can be complex. Book a consultation with our experienced family lawyers today to ensure your rights and your child’s best interests are protected. Visit YLaw for expert guidance.
This post written by YLaw’s talented family law lawyer Justin Murphy
This article is for information only and does not constitute legal advice. It does not create a lawyer–client relationship with YLaw or any of its lawyers. Laws and policies change, and information here may not reflect the most current legal developments. For full details, please contact us to obtain advice about your specific situation.