Moving with a child after separation or divorce is one of the most litigated family law issues. The Divorce Act was changed as of March 1, 2021, to contain new rules for relocation and changes of residence.
The new rules are meant to promote consistency and predictability, with the goal of reducing the need for litigation when a parent wishes to move. Here is what you need to know about the changes.
New Notice Requirements If You Are Planning to Move
The Divorce Act now contains rules for giving notice about plans to move with or away from your child. If you have a parenting order under the Divorce Act in respect of a child (i.e., an order giving you custody, access, parenting time, or decision-making), you must give notice of your plan to move to any other person who has custody, access, parenting time, decision-making responsibility, or contact under a contact order in respect of that child.
Notice must be given whether you are planning to move with your child or without your child, but the contents of the notice are different, and the steps you must take also depend on whether the move is a “change of residence” or a “relocation.”
What Is a “Relocation” under the New Divorce Act?
Not all moves are relocations. The Divorce Act now contains a child-focussed definition to determine whether a move is a “relocation” or not. A relocation generally means the parenting time schedule for the child will no longer work because of the move. More particularly, it is a “relocation” if the move will have a significant impact on the child’s relationships with you or with someone who has (or is applying for) parenting time, decision-making responsibility or contact. If it is a relocation, you must follow the relocation rules under the Divorce Act discussed below.
If the move will not have a significant impact on the child’s relationships as discussed above, it is a “change in place of residence” under the Divorce Act. The notice you are required to give in advance of a change in place of residence must be in writing and include the date you are moving, your new address, and your new contact information (though there can be exceptions to this notice requirement in situations involving family violence). Notice of a change in place of residence is for practical reasons, so other people with parenting responsibilities or a contact order will know where the child lives and where to pick up and drop off the child.
New Process for a Move That Is a “Relocation”
If your planned move with your child or away from your child is a “relocation” as defined in the Divorce Act, you must give written notice to anyone else who has parenting time, decision-making responsibility, or contact with the child at least 60 days before you expect to relocate using the Notice of Relocation form. The Notice of Relocation must contain specified information, including when the move will take place, your new address and how contact information, and your proposal for how parenting time, decision-making responsibility and how contact would be exercised following the proposed move in order to support the child’s relationships with the people receiving notice. Here is what happens next:
If you are planning to relocate with your child, anyone with parenting responsibilities for your child can object to the move but must do so within 30 days of receiving your notice by either completing an Objection to Relocation form or applying to the court to stop the relocation. Note that a person with a contact order cannot object to your child’s relocation, but can ask for the contact order to be changed if the relocation is permitted.
If both parents agree to the child’s relocation or the 30-day window passes with no objection/court application, AND there is no existing court order in place prohibiting the relocation, then the person who planned the relocation can move with the child on or after the date set out in the notice.
Note that if you are planning to relocate without your child, you still have to provide the same Notice of Relocation, but no one can object to your relocation.
What If the Relocation Is Opposed?
If you receive an Objection to Relocation or a court application opposing the relocation has been filed, you cannot relocate with the child until a court makes an order allowing it. The court will decide whether a child can or cannot relocate based on what is in the best interests of the child, taking into consideration the seven additional factors that are now explicitly set out in the new Divorce Act (which include the reason for the relocation, the impact of the relocation on the child, etc.).
Prior to the March 1, 2021 amendments, there was a lot of uncertainty in the law relating to relocation (https://www.family-law.ca/b/can-i-move-away-with-my-children-divorce-lawyer-discusses-mobility-rights). The new list of factors that the court must consider is intended to help improve the consistency and predictability of outcomes. The following provisions were also added as of March 1, 2021, to promote stability for the child and predictability of outcomes:
1. Clear burdens of proof
Where parents have substantially equal parenting time, the parent who intends to relocate with the child has the burden of proving on a balance of probabilities that the relocation is in the best interests of the child.
Where the relocating parent has the vast majority of parenting time, the parent who opposes the relocation has the burden of proving on a balance of probabilities that the relocation would not be in the best interests of the child.
In any other case, each parent has the burden of proving whether the relocation is in the best interests of the child.
2. Double-bind question prohibited
The Divorce Act now specifically prohibits the court from considering the question of whether or not the parent would proceed with a relocation if they were not permitted to bring their children. A response of “I won’t relocate without my child” may be interpreted as evidence that the proposed relocation is not sufficiently important and should not be permitted. A response of “I would relocate without my child” may be interpreted as evidence that the parent is not sufficiently devoted to the child.
3. Travel expenses
If a relocation is permitted, the Divorce Act now specifically permits the court to make an order about whether and how travel expenses relating to exercise of parenting time are to be shared between the parents.
Set up a Consultation with Us
If you have children and you are planning to move after separation or divorce, or if you want to object to a proposed relocation, consult Valerie M. Little Law Corporation at your first opportunity to make sure your rights and those of your children are not compromised.