Mobility & Relocation

What are the required steps in changes to residence and relocation?

Success in relocating away from a municipality where one parent resides to another is often very difficult to attain. Historically, the court reviews several factors in determining whether to allow a parent to relocate, including the distance of the proposed move, the reason for the move, and the impact that the move may have on the children’s relationship with the non-moving parent in applying the guiding principle of the best interests of the child.

As of March 1, 2021, there will now be a new framework to review changes in residence and relocation in the Divorce Act, which includes written notice of changes to residence and relocations between the spouses/parents. There is now an expanded view of the best interests of the child criteria for the court to consider, and establishes clear directions and burdens of proof in certain situations. There are exceptions to this rule of notice requirements in situations where there is a risk of family violence and a spouse/parent obtains a court order that notice of a change to a child's residence is waived or modified to provide limited information. In these circumstances, a party can bring an application to the court without the other spouse's knowledge. 

"Relocation" has been added as a new term and now refers to a change in residence of the child or person who has parenting time or decision-making responsibility that is likely to have a significant impact on the child's relationship with a person who has:

1. Parenting time;
2. Decision-making responsibility;
3. Is asking for a parenting-time or decision-making responsibility in an application before the court; or
4. Has a contact order with a child.
5. Each party will now have a responsibility to inform the others that may be affected concerning the relocation of a parent or child at least 60 days before to the proposed move, as stated at Section 16.9(1) of the Divorce Act.

Once a Notice of Relocation is provided to the affected individuals, those parties will have 30 days to object, which objection shall include:

(a) A written statement that the person objects to the proposed relocation;

(b) The reasons for the objection;

(c) The views of the person for the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and

(d) Any other information prescribed by the regulations.

If no objection is received with the 30 days of the party giving notice of the relocation the party and the child may relocate provided that there is no existing court order that prohibits the relocation. The burden of proof will be on the party seeking to relocate with the child in circumstances where the child is living with both parents. In circumstances, where the party seeking to relocate has the child in their care the majority of the time, the burden of proof will be on the party objecting to the relocation to prove that the relocation would not be in the best interests of the child.

The best interests of the child expanded in context to relocation

Courts will now be required to order parenting time to each parent based on the child's best interests. The best interests criteria will help the court to tailor parenting arrangements for each child's specific situation. The best interests of the child test has been expanded in the context of the relocation such that a court in reviewing the issue will now have to consider the following:

1. The reasons for the relocation;
2. The impact of the relocation on the child;
3. The amount of time spent with the child by each person who has parenting time;
4. Whether notice was provided of the desire to relocate;
5. Any current orders or agreements that specify geographic area;
6. The reasonableness of the proposal; and,
7. Compliance with family law obligations.

If you are facing residency and relocation issues that requires the expertise of highly skilled family law lawyers, we invite you to contact our firm for a consultation. We can assist you in seeking a residence and relocation variance or to respond to such a request from the other parent.