Parent Relocation and Best Interests of the Child

Can one parent relocate a child without the other parent’s consent?

There are several circumstances in which one parent’s consent is not required to relocate a child. In a recent decision, the BC Supreme Court discussed the rules pertaining to the relocation of a child by one of the child’s parents. In Dowell v Hamper, 2019 BCSC 1266, the child’s father applied to the court, pursuant to s.69(2) of the Family Law Act , SBC 2011 c.25, for an order prohibiting the child’s mother from relocating their nine-year old daughter from Burnaby to Nelson.

“Relocation,” for the purposes of the Family Law Act, refers to a change in the location of a child, or a child’s guardian that can reasonably be expected to have a significant impact on the child’s relationship with another guardian, or other people who have a significant role in the child’s life. Generally, it is not necessary to seek court intervention where a parent wishes to relocate with a child, however the relocating parent must still follow the guidelines as provided in the Family Law Act. Additionally, court intervention may be required where the other parent brings an application to the court objecting to the child’s relocation.

Providing Notice of Relocation

If you want to relocate with your child you must provide notice to the child’s other parent in accordance with s.66 of the Family Law Act. The Act states that a parent wishing to move with their child must give written notice to all the child’s other guardians and people who have contact with the child, at least 60 days before the date of relocation. There are two exceptions to this rule, however. A parent will not be required to give notice a) where notice cannot be given without creating a risk of family violence, or b) where there is no ongoing relationship between the child and their other parent. If the other parent does not agree to the proposed relocation of the child, that parent may bring an application in court for an order prohibiting the relocating parent from moving with the child.

Seeking an Order to Prevent Relocation

If another parent or guardian of your child has given you notice that they intend to relocate with your child, you may bring an application before the court to prohibit the child from being relocated. You must apply to the court to prohibit the relocation within 30 days of receiving notice from the other parent. After an application to prevent the relocation of a child has been brought, the parent wishing to move with the child must satisfy the court of several things pursuant to section 69(4) of the Family Law Act.

  1. That the relocation is made in good faith;
  2. The relocating parent has suggested reasonable arrangements to preserve the relationship between the child and the child’s other guardians; and
  3. That the relocation is in the best interests of the child.

In determining whether the relocation is made in good faith, the court considers the reasons for the proposed relocation, whether the relocation would enhance the quality of life of the child, whether any notice was given to the other guardian, as well as any restrictions on relocation contained in a written agreement or order.

Most importantly, however, the court must consider whether the relocation would be in the best interests of the child. Section 37 of the Family Law Act, provides that in determining the best interests of a child, all of the child’s needs and circumstances must be considered. The needs and circumstances of the child include, but are not limited to: the child’s well-being, the strength of the child’s relationships, the child’s need for stability, the impact of any family violence, and where it is appropriate, the views of the child.

It was eventually decided in Dowell v Hamper that the child ought to be relocated with her mother, on the basis that it was in the child’s best interests to do so.

If you are concerned about the possible relocation of your child, contact Richter Trial Lawyers at 604.264.5550.

To find out more about the law regarding custody and parenting of children in BC, go to https://richtertriallaw.com/family-law-2/custody_parenting/

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