Regardless of being married, common-law or even having never been in a relationship with the other parent, moving with children can be a complex subject for parents. Recent changes to the Divorce Act and the Children’s Law Reform Act have modified how the Court will determine if a relocation will be permitted or not.
The first thing to consider – is the move a “relocation” or a “change of place of residence” – there is a distinction.
If the move will have a “significant impact” on the child’s relationship with the other parent, then the move will be considered a relocation. Otherwise, it will be considered a “change of place of residence”.
Notice will be Required
If a parent who has parenting time with a child changes their residence, notice must be given. There is no prescribed form, but it must provide the date of change, the address of new place of residence and contact information.
If the move is a relocation, then notice must be given at least 60 days in advance of relocation date, using the appropriate form prescribed by applicable regulations.
The other parent will then have an opportunity to consent to the relocation. If the other parent does not consent, the intervention of the Court will be necessary.
How will the Court Decide?
In deciding whether to authorize the relocation, the Court will take into account the best interests of the children as defined by the Children’s Law Reform Act. In addition, they will take the following factors into consideration:
- the reasons for the relocation;
- the impact of the relocation on the child;
- 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;
- whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
- the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
- 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
- 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.
Finally, it’s important to understand the burden of proof.
If the child spends “substantially equal” time in the care of each party, the party who intends to relocate has the burden of proving that the relocation is in the children’s best interest.
If the child spends the “vast majority” of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving the relocation would not be in the best interests of the child. “Vast majority” has been defined as at least 80%, but this is not set in stone.
In other instances, both parties may have the burden of proving whether the relocation is in the best interests of the child.
As can be seen, relocating can be complex endeavor, it’s recommended you consult with a competent lawyer about your rights and obligations. We’re here to help.