Know the rules: Relocation under the new Divorce Act

By Camille Boyer, Legal Coach

Relocation with children is often one of the biggest challenges for separating parents. While the situation is usually quite complex, the law on relocation of children has recently clarified some of the basic issues that arise in litigation.

Factors to Consider

Prior to the amendments to the Divorce Act, family lawyers and Courts turned to the 1996 Supreme Court of Canada case of Gordon v Goertz for direction. Once a parent has established a material change in circumstances resulting from that parent’s relocation, the Court must determine what is in the child’s best interests in all circumstances. The non-exhaustive factors set out by the Supreme Court for consideration of the child’s best interests in relocation are:

(a)  the existing custody arrangement and relationship between the child and the custodial parent;
(b)  the existing access arrangement and the relationship between the child and the access parent;
(c)   the desirability of maximizing contact between the child and both parents;
(d)  the views of the child;
(e)  the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; 
(f)   disruption to the child of a change in custody; and
(g)  disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

Previously, the Divorce Act did not specifically reference relocation litigation and, instead, all matters related to parenting/access were determined solely in consideration of the child’s best interests. With the new amendments, the Act now sets out in section 16.92 the specific factors that now govern decisions. They are:

(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate with the child complied with any applicable notice requirements;(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

The Act further specifies at 16.92(2) that the Court shall not consider whether the parent who intends to relocate would still do so without the child if the relocation were prohibited. This is similar to the Alberta Court of Appeal’s ruling in RJF v CMF, where the Court held that evidence or cross-examination on whether the relocating parent would choose to stay if they were unsuccessful in Court is prejudicial and irrelevant.

Burden of Proof

A fundamental revision to relocation law in the Divorce Act pertains to burden of proof. Previously, there was no burden on either parent and no presumptions in favor of either parent. Simply put, both parents would have the burden to prove their position – relocation or not – was in the child’s best interests. Now, section 16.93 of the Act sets out 3 separate circumstances in relocation cases and the resulting burden of proof: 

  1. When the child spends “substantially equal” time in the care of both parents, the burden of proof rests on the relocating parent to show that the move is in the child’s best interests.
  2. When the child spends the “vast majority” of time in the care of the relocating parent, the objecting parent has the burden of proving that the relocation would not be in the child’s best interests.
  3. In any other case, both parents have the burden of proving their position is in the child’s best interests.

Notice Requirements

A move to a new residence, even in a different geographical area, may not always qualify as a relocation. Section 16.8 of the Act sets out the notice requirements for a parent changing residence: it must be in writing, and set out the date on which the change is expected to occur, the address of the new residence, and the contact information of the person or child.

When a person with parenting time or decision-making responsibility for a child of the marriage is relocating – not merely moving to a new address – there are separate and more comprehensive notice requirements. The party must provide notice a minimum of 60 days in advance of the expected date in the specific form provided in the regulations to the Act. It must be provided to any other person who has parenting time, decision-making responsibility, or contact time with the child. It must include the expected date of the relocation, address, contact information, a proposal as to how parenting time, decision-making, and/or contact time could be exercised following the relocation, and any other information set out in the regulations.

A person served with notice of a relocation is required to act quickly if they wish to object. The Act states that the parent may relocate with the child if the other parent has not objected in the specific form within 30 days, so long as there is no other Order or agreement prohibiting the relocation, or a pending parenting application already before the Court.

In exceptional circumstances, notice requirements can be waived or modified on application to the Court. An example: instance of family violence. The Court may order that a moving parent does not need to provide their former spouse with their new address.

It is important to distinguish whether a move is a relocation or a change in residence, as the notice requirements are different. Furthermore, in circumstances of a parental relocation, it is essential that notice is given in the required format, and any objection to the move is similarly provided in the specific form prescribed by the regulations.

Relocation law can be extremely complex, and with the new amendments to the Divorce Act, including the notice requirements and burden of proof, it is essential to speak to a family lawyer as soon as possible if you are considering a relocation, or you have received a relocation notice from your former spouse. Our legal coaches have considerable experience with relocation cases, including those falling under the new Divorce Act amendments. Contact Coach My Case today to book your free 20-minute consultation.