Non-removal of a child from a specific geographical area

Orders to prevent removal of child

64 (1) On application, a court may make an order that a person not remove a child from a specified geographical area.

(2) On application, if satisfied that a person proposes to remove a child from, and is unlikely to return the child to, British Columbia, the court may order the person who proposes to remove the child to do one or more of the following:

(a) give security in any form the court directs;

(b) surrender, to a person named by the court, passports and other travel records of the person who proposes to remove the child or of the child, or of both;

(c) transfer specific property to a trustee named by the court;

(d) if there is an agreement or order respecting child support, pay the child support to a trustee named by the court.

(3) This section does not apply in relation to the relocation of a child within the meaning of Division 6 [Relocation] of this Part.

(4) A person required by an order made under this section to hold passports, travel records or other property delivered under the order must do so in accordance with the directions set out in the order.

Explanation from the Ministry of Justice

Section 64 provides for two types of orders with respect to removal of a child.

The first type allows a court to restrict a person from taking a child out of a certain area. This type of order is often used currently. For example, an order might say that neither parent may take the child out of the Lower Mainland without the other parent’s consent. This type of order is generally about parenting together and making sure each guardian knows where the child is.

The second type is used where there is concern that a person may remove and not return that child. In these circumstances, the court may take action to stop the person from leaving with the child, such as surrendering passports or providing security to motivate the person to stay.

This section clarifies that these orders do not apply to the situation where one parent wants to move as those applications are different and are to be dealt with under Division 6 (Relocation). This ensures a person cannot thwart the effect of a relocation order by inappropriately making a non-removal application.

Commentary

The court may make an order preventing a person from removing a child from a specified area.

Two types of orders are specified. In the first, a court is restricting a person from taking a child out of a specified area. These would likely be mutual non-removal clauses, which would apply to both parties.

The second form of order is where the court is concerned that a person may flee with a child and not return. If the conclusion is that a person intends to remove a child and is unlikely to return, the court may, under s. 64(2), also require the person to post security, surrender travel documents, transfer property to a trustee, or pay child support to a trustee. The court may also require the posting of security to motivate a person to stay in the jurisdiction or specified area.