How Can A Parent Relocate With A Child Under The New Divorce Act?

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Part 3 of a 4 part series on Canada's new divorce act

The new Divorce Act that came into effect on March 1, 2021, contains provisions that alter the process of moving with a child. These rules apply to families going through a divorce or already divorced, as well as those with existing agreements and orders that deal with decision-making or parenting time regarding the child.

The new Divorce Act includes distinguishes between changes of residence and relocation. Its amendments pertain to the following:

  1. Providing notice of proposed change of residence or relocation
  2. Factoring in additional best interests criteria for relocation cases
  3. Supplying burdens of proof that will apply in certain relocation cases

Successful relocation requires a court to be satisfied with the material change of circumstances for the child, meaning the move is still considered to be within the child’s best interests. Here’s an overview on how the new provisions might affect you.

Changing Residencies With a Child Under the New Divorce Act

Merely moving to a new house in the same city shouldn’t technically impact significant relationships your child has or hinder proposed parenting plans; therefore a different protocol is required.

If you are relocating within the same city and have parenting time, decision-making responsibilities or access to your child, you will have to provide written notice 30 days before a change of residence.

The notice must include the date of the move, the new address and contact information and be addressed to the other person/s who have/has parenting time, decision-making responsibilities, or access to the child.

Relocation With a Child Under the New Divorce Act 

Relocation with a child is allowed if the people involved with the child agree or the court permits it. In comparison to changing residencies, relocation is likely to yield a significant impact on the child.

If you are relocating you need to by law provide 60 days notice in writing along with a proposal for a new parenting plan to any other person who has parenting time, decision-making responsibilities. You must also notify anyone who has a court order for access to the child, even if the child is also relocating.

The other person with any of the aforementioned liberties and/or responsibilities, who is not relocating, may object within 30 days of receiving notice to relocation by using an objection relocation form or by applying to the court for an order.

A cautionary warning: The person objecting to the relocation cannot force the relocating person not to relocate and must be prepared to parent the child should the relocation not be within their child’s best interests.  In certain cases, the other person may agree to the relocation but not the new parenting plan, whereby they are required to set out a preferred plan.

Burden of Proof Requirements 

If those involved with the child choose to go to court, one person has the burden of proof, i.e. in order to succeed, they will need to present enough convincing evidence to convince the court to grant the order that they want.  Parenting time arrangements set out in the court order or agreement will determine who has the burden of proof. There are potentially 3 scenarios:

  • If the child spends equal time with both people involved, the person who wants to relocate must prove it is in the best interests of the child to move.
  • If the child spends most of the time with the person who wants to relocate, the person objecting has the burden of proof to show that 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.

Factors the Court Considers Before Granting Relocation of a Child 

The court’s decision will always be based on the best interests of the child. It will take into consideration the following factors:

  • The reason for the relocation and its subsequent impact on the child
  • The parenting time and involvement each parent has with the child
  • Whether the proposal to change the parenting arrangement is reasonable
  • Whether proper notice has been given for relocation and the possible objection to
  • Whether there is a court order or agreement in place that stipulates the child must live in a specific place
  • Whether the people involved have followed their court order agreement.

It’s important to take cognizance of the following:

  • A court cannot consider whether the person who plans to relocate would stay behind if the child was not permitted to relocate.
  • There are certain exceptions to giving notice: if you get permission from the court not to give notice, for example, in the case of family violence, or you have a court order stipulating you do not need to give notice of a move.

If parents were never married, or they have not pursued a divorce then provincial family legislation is applicable. Bear in mind, when it comes to relocation with a child under the new divorce act the most significant changes are to do with adequate notice provisions, the burden of proof and decisions centring around the best interests of the child, not the parents. 

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Do You Have Questions About Canada's New Divorce Act?
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