Travelling across the border with a child after separation
A short trip south becomes a legal question once parents separate. The Government of Canada recommends that a child travelling abroad without one or both parents carry a consent letter signed by each parent or person with decision-making responsibility who is not travelling, preferably witnessed by a notary. The letter is not legally required, but border or airline officials may ask for it, and not having it can cause delay or refusal of entry. Canada also warns that a letter does not prevent an abduction.
A parenting agreement or order can deal with travel directly: who holds the passports, how much notice of a trip is needed, and whether the other parent’s written consent is required. Where there is a real risk that a child will be taken out of BC and not returned, section 64 of the Family Law Act allows a court to order that a child not be removed from a specified area, and to require a parent to surrender passports and travel documents or post security. Those orders are separate from the relocation rules below.
Moving with a child, including to the United States
Under the Family Law Act. Where a written agreement or order already sets parenting arrangements or contact, a guardian who plans a move that can reasonably be expected to have a significant impact on the child’s relationship with another guardian or an important person in the child’s life must give at least 60 days’ written notice of the date and the new location (sections 65 and 66). A court can excuse all or part of the notice, for example where it would expose someone to family violence. If no other guardian applies to prohibit the move within 30 days after receiving notice, the move may go ahead on or after the date given (section 68).
If the move is contested, section 69 decides who must prove what. Where the parents do not have substantially equal parenting time, the parent who wants to move must show that the move is made in good faith and that they have proposed reasonable and workable arrangements to keep the child’s other relationships going; the move is then considered in the child’s best interests unless the other guardian shows otherwise. Where parenting time is substantially equal, the moving parent must also prove the move is in the child’s best interests.
Under the Divorce Act. For married parents with a Divorce Act order or proceeding, sections 16.9 to 16.96 require 60 days’ notice in a prescribed form, including the new address and a proposal for parenting time. Where both regimes might apply, ask which notice rules govern before you send or answer a notice.
After a child has been taken. BC courts make parenting orders mainly where the child is habitually resident in BC when the application is filed (section 74). If a child is wrongfully taken to, or kept in, another country that is a party to the Hague Convention on the Civil Aspects of International Child Abduction, the Convention provides a return process. The United States has been a party since 1988 and Canada since 1983, and section 80 of the Family Law Act gives the Convention the force of law in BC, with the Attorney General as BC’s central authority. Speed matters in these cases. Our article on parenting orders when parents live in different countries looks at how the courts approach jurisdiction.
When the other parent lives in the United States
Child support is still calculated under the Federal Child Support Guidelines when a BC court makes the order, but getting or changing an order against someone in another country raises practical steps: service of documents outside BC, proof of income, and enforcement. BC’s Interjurisdictional Support Orders Act sets out a procedure for support applications and orders involving jurisdictions the province has declared reciprocating. Whether it applies, and whether it is better than a direct BC court application, depends on where the other parent lives. Spousal support raises the same questions, with the Spousal Support Advisory Guidelines as a reference for amount and duration.
If a divorce has already been granted in the United States, Canada recognises it under section 22 of the Divorce Act where either spouse was habitually resident in that state for at least a year before the case began; other recognition routes also exist. Property in Washington State, or a dispute over which place’s law applies to a couple who lived in both countries, needs advice on both sides of the border.
Which courts a White Rock family uses
There is no courthouse in White Rock. The courthouse directory lists the Surrey Provincial Court at 14340 57 Avenue, about 11 km by road, and the Supreme Court sits in New Westminster (about 31 km), Vancouver and Port Coquitlam, with no Supreme Court registry in Surrey.
Provincial Court. It decides guardianship, parenting arrangements, contact, child and spousal support and protection orders, but not property or pension division (section 193) and not divorce. A new case starts at the registry closest to where the child lives most of the time, or, with no child issue, to the home of the person who files first, unless the parties already have a case elsewhere (Provincial Court Family Rules, rule 7). For a child living in White Rock that will likely be Surrey; the rule does not say how distance is measured, so confirm with the registry. Surrey is an early resolution registry. Before most applications, a parent files a notice to resolve, meets a family justice counsellor at the Surrey Justice Access Centre for a needs assessment, completes a parenting education program and takes part in a dispute resolution session. Protection orders, priority parenting matters, relocation applications and some other orders are exempt from those steps.
Supreme Court. Divorce, property division and any combination of claims go to a Supreme Court registry. The notice of family claim names the place of trial, and the court can change it. New Westminster is the closest by road, and our office is a short walk from the Law Courts there.
Divorce, property and deadlines in brief
A BC court can grant a divorce if either spouse has been habitually resident in BC for at least one year immediately before the case starts. The ground is breakdown of the marriage, proved by a year living apart (which can be under one roof), adultery or cruelty. An undefended divorce can be granted on written materials, and it takes effect on the 31st day after the order unless an appeal is pending or the court, in special circumstances and with both spouses agreeing not to appeal, sets an earlier date. See how to file for divorce in BC and our divorce lawyers.
Family property and family debt are generally shared equally from separation, subject to an agreement, excluded property (such as property brought into the relationship, inheritances and third-party gifts, though not their growth during it) and the court’s power to divide unequally where equal division would be significantly unfair. Unmarried couples who lived together in a marriage-like relationship for two years are treated the same way. A married spouse has two years from the divorce order, and an unmarried spouse two years from separation, to claim property division or spousal support (section 198(2)); the time is paused during family dispute resolution with a qualified professional, but check before relying on it. See property division, child support and co-parenting.
The family lawyers who act for White Rock clients
- Judith A. Janzen, principal lawyer, leads the family law practice (called 2000)
- Rupinder Shoker, associate counsel (called 2011), trial work in the Provincial Court, Supreme Court and Court of Appeal
- Susan Kim, associate counsel, whose practice includes clients with family property in more than one country
- Mason Heller, associate lawyer, who has advised on the division of foreign and domestic assets
- Katya Richardson, associate counsel, with a focus on out-of-court resolution and agreements
- Rasjovan Dale, Shivleen Sidhu and Louisa Ledesma
See the team page for everyone else. For wills and estates, see our White Rock estate lawyers.
Family files are billed hourly. The cost of a first meeting is explained when you book.
Common questions
Can I take my child to the United States for a holiday after we separate?
It depends on your agreement or order, which may require the other parent’s consent or notice. Even where it does not, carry a signed consent letter from the other parent; officials may ask for it.
My former partner wants to move to Washington State with our child. What can I do?
If an agreement or order is in place, they must give 60 days’ written notice. You have 30 days after receiving it to apply to court to prohibit the move; otherwise it can go ahead on the notified date.
Where will a White Rock family case be heard?
Provincial Court matters will likely start in Surrey, subject to the registry rule. A divorce or property claim is filed at a Supreme Court registry; New Westminster is the closest.
We were divorced in the United States. Is that valid here?
Generally yes, if either spouse was habitually resident in that state for at least a year before the divorce case started; other grounds for recognition also exist. Bring the divorce documents to the first meeting.
