New moving rules apply to families going through a divorce or already divorced, including those with existing orders or agreements.
The federal government has made some important changes to the Divorce Act. John-Paul Boyd provided an overview of the changes in his November 2019 article “Important Changes to the Law Are Coming: Mark your calendar!”. At that time, we expected the changes to come into effect in July 2020. However, due to the global pandemic, the changes instead came into effect on March 1, 2021.
One change likely to impact many families is the new rules about moves and relocations.
Separated and divorced parents who plan to move must give notice in certain circumstances. These new requirements apply to all families who are going through a divorce or are already divorced, including those with existing orders or agreements.
The Law Before March 1, 2021
It was the case, and still is, that a Canadian court cannot dictate where a Canadian citizen can live. However, a court can dictate with whom a child will live in the case of separated parents. Before March 1, 2021, the Divorce Act had no specific rules about how parents needed to communicate about relocating a child. Or about how a court should decide where a child should live if one parent chose to relocate.
However, we had caselaw that set out general principles of what a judge should consider. The key case was Gordon v. Goertz, decided by the Supreme Court of Canada in 1996. Each province also had cases from their Court of Appeals that interpreted Gordon v. Goertz further, sometimes inconsistently. Even with theses cases providing guidance, it was often difficult for parents, and lawyers, to predict what a judge would order when one parent wanted to relocate with a child. In fact, Rosemarie Boll wrote a LawNow article in 2013 about the idea of Relocation Advisory Guidelines to provide further assistance.
The changes to the Divorce Act reflect many of the principles set out in Gordon v. Goertz and the subsequent appellate caselaw. Both the caselaw and the Divorce Act make it clear that the primary consideration is always: what is in the child’s best interests?
The Law Now: Notice of changing residences
The new Divorce Act distinguishes between “changing residences” and “relocations”.
A “change in place of residence” is a move that does not impact relationships (for example, a move to a new house in the same city).
Anyone who has parenting time, decision-making responsibilities or contact with a child must provide notice of a change of residence:
- in writing (including date of move, and the new address and contact information)
- to anyone else who has parenting time, decision-making responsibilities or contact with that child.
This is the extent of the obligations for a “change of residence”.
The Law Now: Notice of relocations and objections to relocations
A “relocation” is a move that is likely to have a significant impact on the child’s relationship with someone who has parenting time, decision-making responsibilities or contact with a child (for example, a move to a new community).
Any person who has parenting time with or decision-making responsibilities for a child must provide 60 days’ notice of relocation:
- in writing (parents use Form 1 and those with contact use Form 3), including a proposal for a new parenting plan,
- to any other person who has parenting time, decision-making responsibilities or contact with that child, regardless of whether the child is also relocating.
If the relocating person plans to also relocate the child, the other person who has parenting time with or decision-making responsibilities for that child may object. They must do so within 30 days of receiving the notice to relocate by using Form 2 or by applying to the court for an order.
That other person might object to the relocation itself. In that case, they must be prepared to parent the child in the original location as they cannot force the relocating person not to relocate. Or, the other person might agree to the relocation but object to the proposed new parenting plan. In that case, they would set out their preferred plan.
The relocation with the child will be allowed if:
- no objection is filed and a court order does not prohibit the relocation,
- the people involved with the child agree, or
- the court allows it.
In Alberta, all new Divorce Judgements will require a paragraph setting out how the people involved will give notice to each other in the future.
The Law Now: Factors a court will consider
If those involved go to court, one person may have a “burden of proof” (in other words, one person has the obligation to convince the court). Who has the burden of proof depends on the parenting time arrangement set out in a court order or agreement (so long as they have been following it):
- If the child spends “substantially equal” time with both people involved, the person who wants to relocate must prove it is in the best interests of the child.
- If the child spends the “vast majority” of the time with the person who wants to relocate, the person objecting must show the relocation is not in the best interests of the child.
- In any other case, both people must prove that their position is in the best interests of the child.
When deciding whether to allow the child to relocate, the court must first consider what is in the child’s best interests based on the same factors a court uses to decide any issue related to parenting. The court will also look at additional factors related to relocations, which are:
- the reason for the relocation
- the impact of the relocation on the child
- the parenting time and involvement that each person has with the child
- whether the person planning the relocation has given the proper notice
- whether there is a court order or agreement that says a child is supposed to live in a certain place
- whether the proposal to change the parenting arrangement is reasonable, and
- whether the people involved have been following their court order or agreement.
A court cannot consider whether the person who plans to relocate would stay behind if the child was not permitted to relocate. To do so would put that person in a no-win situation.
The Law Now: Exceptions
Notice must be provided as described in all cases except where there is a court order that waives the notice requirement. A court may waive this requirement in cases of family violence, for example.
These new rules only apply to families who fall under the Divorce Act. If parents were never married, or if they are not pursuing or have not pursed a divorce, then provincial family legislation applies. In Alberta, this is the Family Law Act, which has no specific requirements about moves and relocations other than to make decisions based on the child’s best interests. However, it is usually a good idea to give notice of a move or relocation to a co-parent even if the law does not require it.
Looking for more information?
And see CPLEA’s Family Law resources.
The information in this article was correct at time of publishing. The law may have changed since then.
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