Can I Move with Children After Separation?
Our child relocation lawyers at YLaw know that an immediate move or relocation with children after separation is very common in the family law world. It is called interim relocation or temporary move because parenting arrangements after separation have not been finalized or are disputed.
For tips on how to properly move with your child, click here.
At the time of separation, the initial shock and anxiety sets in, and one parent may think the other parent is somehow not deserving of seeing the child. The easiest route to ‘move on’ may seem to move with the child, often closer to where extended family lives, or somewhere to ‘start fresh’ with lower costs of living. Other concerns include family violence at home which the moving parent wants to avoid, better job opportunities at another city, new partners, etc.
It is very important to distinguish moving with children after separation and without notice, and moving with children with notice and after the trial or conclusion of your family law case.
Interim Relocation: Moving with Children After Separation
Interim relocation means moving with a child after separation and prior to the resolution of parenting time or custody issues – either through trial or settlement. The move can happen either within British Columbia, Canada or internationally.
When parents separate, it is important to remember that both parents are generally guardians and they both have the same amount of rights when it comes to decision-making ability with respect to the children. Under the law, you can’t assume that since you were the primary parent during the relationship, you have the right to move with the children after separation without consent, and that you get the final say.
A Court may eventually grant a relocation to a parent. However, in the interim and until there is a trial that can be heard, courts are generally reluctant to permit a relocation. Even if a parent has suddenly moved to another city without the other parent’s consent, the court will generally order the child to return.
It is very rare and exceptional for our BC courts to allow relocation or move with children prior to trial. This is because the Court does not have sufficient evidence or time to decide on what is in the best interests of the children.
The Court in the case of S.Z.M. v. K.M.N. said:
 This is an interim application, based on limited affidavit evidence, some of which is contested. The courts are reluctant to make interim orders that result in a relocation and disruption to a child’s life. As Madam Justice Fleming said in Nolie v. Reece, 2016 BCSC 2201, relocation is one of the most serious decisions the court can be asked to make. An interim order can have lasting consequences for a young child, in particular, potentially depriving her of an opportunity to bond with both parents.
Wrongful Removal of Children in BC
Under BC family law, removing a child without obtaining the consent of the other parent or an Order of the court is considered wrongful removal. There are exceptions to this rule including extreme family violence or situations where the moving parent is left with no choice but to move. These exceptions are very rare and there is a high bar to meet them.
Generally, despite findings of family violence, the Courts have still ordered children back to their original residence in most cases. In other words, even if family violence existed in your relationship, you still need to notify or obtain the consent of the other parent to move. Family violence in itself is not a ticket for moving without the other parent’s consent, in most cases.
Recent BC Cases on Temporary Moves with Children Prior to Family Law Trial
Our lawyers at YLaw successfully represented clients in two reported cases where there was a parent that moved to another city within British Columbia without the other parent’s consent. The children were ordered to return:
- In the case of T.S.T. v. T.T., 2020 BCSC 1628, a mother had relocated with the parents’ young child to another city citing COVID concerns without the father’s consent. Despite an initial finding that the move was reasonable, the decision was eventually overturned and the child was ordered to return. Ari Wormeli was the successful counsel on this case.
- In the case of S.Z.M. v. K.M.N., 2021 BCSC 365, there was an allegation by the mother that there was a long history of family violence and that it was better for her to reside in Nanaimo with her parents due to safety and financial reasons. The father denied the allegations of family violence, and the child was ordered to return. Abib Ngom from YLaw was the successful counsel in this case.
In both cases, there was an emphasis on the importance of returning the children to the city that they were ordinarily residing in in order to maintain relationships with both parents. Having both parents in the children’s lives is an important consideration for a court, and Judges are reluctant to order a relocation immediately after a separation and prior to a full trial.
What to Do if You Are Worried About Your Ex Moving or Wrongfully Removing Children
If there is a serious concern that the child(ren) will be removed from the city or country in which they ordinarily reside, it may be prudent to attend court and seek a non-removal order. This is of the utmost importance if you have already been served with a Notice of Relocation.
In the event the child has already been relocated without consent, it is very important to begin to take immediate steps to have them the return. The longer the left behind parent waits to take steps to have the child returned, the more difficult it may become to get an order to have the children returned.
For permanent relocation with children at or after the resolution of your family law case, click here.
If you want to relocate or move with your child, or want to stop your ex from moving with your children, contact our award winning family lawyers at 604-974-9529 or get in touch.
Many thanks to Abib Ngom for writing this article – May 28, 2021.