Can I Relocate with my Child? The Legislative Framework and Barendregt Decision

May 30

There are a variety of reasons why you may wish to move locations with your child. However, if you are divorced or separated, it’s important to note that the Family Law Act sets out specific set of rules designed to ensure that any relocation is in the best interests of the child.

If you are planning to relocate with your child, be sure to review the rules set out by the Family Law Act to ensure that a court would allow you to make this move.

What is Relocation?

The Family Law Act defines relocation as: “a change in the location of the residence of a child or child's guardian that can reasonably be expected to have a significant impact on the child's relationship with (a) a guardian, or (b) one or more other persons having a significant role in the child's life”.

The Family Law Act identifies two circumstances in which issues of relocation may arise:

Without a written agreement or court order respecting parenting arrangements or contact with the child; or
With a written agreement or court order respecting parenting arrangements or contact with the child.

The rules for relocation in each circumstance are slightly different.

Relocation Without an Existing Agreement or Order

If there is no written agreement or order respecting parenting arrangements or contact with the child, the rules on changes to a child’s residence are found in section 46 of the Family Law Act. In such a circumstance, matters of relocation are generally simpler.

On application by a parent to relocate with the child, the court must consider the best interests of the child and the reasons for the change in the location of the child’s residence. The court must not consider whether the parent who is planning to move would do so without the child.

Relocation With an Existing Agreement or Order

If there is already a written agreement or order respecting parenting arrangements or contact with the child, there is a more significant rule framework to which a parent must adhere. These rules are found in Division 6 (sections 65 to 71) of the Family Law Act.

Section 66 of the Family Law Act sets out the notice requirements for a parent wishing to relocate. A child’s guardian who plans to relocate themselves or a child, or both, must give 60 days written notice to all other guardians and persons having contact with the child. The written notice must contain both:

· the date of the relocation, and

· the name of the proposed location.

However, the court may grant an exemption from this notice requirement if either of the following applies:

· Notice cannot be given without incurring a risk of family violence, or

· There is no ongoing relationship between the child and the other guardian or the person having contact with the child.

If notice has been given in accordance with the above, the child may be relocated on or after the date specified in the notice unless another guardian of the child, within 30 days of receiving the notice, files an application for an order to prohibit the relocation.

Court Orders Respecting Relocation

If an application is made, the court may make an order either permitting or prohibiting the relocating of the child. The primary principle at the forefront of this decision, as in any family law matter, is the best interests of the child.

Depending on the division of parenting time, either the relocating guardian or the guardian opposing the relocation will have the “burden of proof”, or the onus to satisfy the court, that their position is in the best interests of the child.

If there is unequal parenting time, the relocating guardian must only satisfy the court that:

· the proposed relocation is in good faith, and

· they have proposed reasonable and workable arrangements 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.

If the relocating guardian satisfies the court of the above factors, the relocation will be presumed to be in the best interests of the child unless another guardian satisfies the court otherwise.

If there is substantially equal parenting time, the relocating guardian must not only satisfy the court of the above factors, but also has the burden of satisfying the court that the relocation is in the best interests of the child.

In determining whether the proposed relocation has been made in good faith, the court must consider all relevant factors, including those set out by section 69(6) of the Family Law Act:

(a) the reasons for the proposed relocation;

(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;

(d) any restrictions on relocation contained in a written agreement or an order.

The court must not consider whether a guardian would still relocate if the child’s relocation were not permitted. This is commonly known as the “prohibition on double bind”.

Leading Case Law – Barendregt

The 2022 Supreme Court of Canada decision in Barendregt v. Grebliunas is the leading case on relocation, providing several important principles governing the determination as to whether a relocation is in the child’s best interests.

The decision reiterates that, despite certain legislative presumptions, the inquiry into relocation is always an individual one, based on the best interests of the specific child in the specific circumstances. This means that relocation may in fact be in the best interests of the child even though the parties had co-parented or shared equal parenting time. The Court notes that “maximum contact” with parents and guardians is not synonymous with the best interests of the child; the inquiry must be child-centric, not parent-centric.

Reiterating the importance of the prohibition on double-bind, the Court clarifies that this must apply to both parents, meaning that a court may not consider how the relocation outcome would affect the plans of either parent.

While the legislative framework provides that a court should consider the reasons for the move in determining whether the proposed relocation has been made in good faith, such a consideration should not deflect or detract from the primary focus on the best interests of the child. Importantly, courts should not “cast judgement” on the relocating guardian’s reason to move. The relocating guardian does not need to prove that their relocation is justified, and a lack of compelling reason for the move should not count against the relocating guardian’s proposal, unless it reflects adversely on that guardian’s ability to meet the child’s needs. In particular, the needs of the relocating guardian, including availability of and access to emotional support networks, may be highly relevant, directly and indirectly, to the best interests of the child.

Relocation matters can be highly contested and difficult to navigate. If you would like to learn more, please contact our team of Vancouver family lawyers for a consultation.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

Amy Kaustinen

Amy is a law student in her third year of the JD program at the University of British Columbia Peter A. Allard School of Law. After graduating in May 2024, she looks forward to completing a judicial clerkship at the British Columbia Supreme Court.

Prior to law school, Amy obtained her Bachelor of Commerce (Honours) from Queen’s University, where she studied and gained work experience in corporate social responsibility, non-profit management, finance, and accounting.

She was drawn to law school for the intellectual challenge along with her deeply held desire to help others and make a difference in the world around her. As a former student clinician and Director of Technology and Publications at the Law Students’ Legal Advice Program, Amy learned to deliver empathetic and efficient client service to low-income folks unable to afford legal assistance. In addition to writing for Illuma Law, helping to provide accessible legal information to the public, Amy is currently volunteering at Battered Women’s Support Services, where she helps with client intake, referral services, and preliminary legal research and writing for women in Vancouver facing gendered violence.