I started my last blog with a musical reference, so in keeping with tradition, I’ll do the same here. In 1980, the venerable Neil Diamond (noted for his smash hit “Sweet Caroline”), released the patriotic soft rock ballad “America”. The song describes the immigration of millions of people to America over the decades who sought a better life. One line of the chorus goes:
Got a dream to take them there
They’re coming to America
Got a dream they’ve come to share
They’re coming to America
Indeed, people crave a better future. This often requires moving to a different city, province, or country.
The COVID-19 pandemic has forced many people to rethink their career. Some folks were temporarily laid off, others lost their job, and even more likely experienced a change in their job duties.
As a result, many people may be considering a move for a better job.
So – if you have children and you and your ex spouse have a written parenting agreement or parenting order, can you move to a new city with the kids?
The short answer is … maybe.
In British Columbia, there is actually a procedure in the Family Law Act that, in principle, sets out a fair process to decide the issue of relocation when there is a written parenting agreement or parenting order in place.
I’ll set out (in very basic terms) that process below:
1) Firstly, a “move” / “relocation” in this case means one that will have a significant impact on the children’s relationship with your ex (so, moving 10 minutes down the road likely isn’t a “relocation” under the Family Law Act). If you plan to move with your kids and you have a written parenting agreement or parenting order with your ex, you must provide at least 60 days’ written notice of the location and date of your move. The notice should also provide details about where you and the kids plan to live, where they will go to school, any childcare arrangements at the new location, and any extra curricular activities the kids would participate in. The notice should also set out a proposed parenting schedule for your ex in light of the move.
2) After providing written notice to your ex, both of you have a statutory duty to use best efforts to try and resolve the issue of relocation. This would likely entail both of you trying to agree on a new parenting arrangement for your ex if he / she would consent to the move. This might mean giving the children more time with you ex during school holidays, long weekends, summer holidays, etc.
3) If you and your ex cannot reach an agreement on the relocation, your ex can file an application in court to prohibit the relocation (which must be done within 30 days of receiving your written notice – see point #1, above).
4) If your ex does file an application in court, this doesn’t end the matter. You will be permitted to respond by filing your own documents (reply and affidavit evidence). Ultimately, the issue of whether you can relocate with the children will be set down for a hearing before a judge.
5) The judge will first need to determine if both you and your ex have “substantially equal parenting time” with the children. If this is the case, you will be required to prove that the move is in the best interests of the children.
6) More generally, the facts that the judge will examine are: (a) whether the proposed move is made in good faith, (b) whether you proposed reasonable and workable arrangements to preserve a relationship between the children and your ex (and his / her family) if you did move, (c) whether the proposed move is likely to enhance to general quality of life for the children, including emotional well being, financial or emotional opportunities.
In short, the issue of relocating with children can be complex. You must provide proper notice to your ex and you must try to work out a solution if possible. If you cannot reach an agreement, it is likely that you will be dealing with the issue in court.
If you have questions about relocating with children, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward during this uncertain time.
Darren Schmidt maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.
