Moving Away With or Without Children – Changes to the Divorce Act

By Tanya Thakur, Family Lawyer Vancouver

Are you in the process of separating from your spouse?

Changes to the federal Divorce Act, enacted on March 1 2021, may apply to you. And if you’re thinking of moving away after separation with or without your children, you should definitely review the new changes to the Divorce Act with respect to relocation.

What are the changes? Here are several to keep in mind: 

  • New notice of proposed relocation provisions
  • Family violence considerations in relocation cases
  • Clarified ‘best interest of the child factors'
  • Change in burdens of proof (i.e. who has to prove what) in Certain Relocation Cases

These form the basis of the Divorce Act’s new relocation framework, the goal of which is to provide greater certainty through: 

  • mandating notice of a relocation
  • defining what constitutes relocation
  • clarifying who may bring an application
  • expanding the factors the court may consider in their analysis of the best interest of the child (Source: Bill C-78 - Department of Justice)

How is ‘Relocation’ defined?

  • Any move of a child or a person with parenting responsibilities is a change in place of residence
  • A relocation is a change in place of residence

  • of a child or
  • a person with parenting time or decision-making responsibilities

  • which has a significant impact on the child’s relationships with parent or people who have contact with the child.

Any person who has parenting time with a child or decision-making with respect to the child must provide 60 days’ notice of relocation whether they are moving with or without the child. Notice of the move must be given to other persons with parenting time or decision-making responsibilities or contact. 

The notice of relocation must:

  • be in writing;
  • state the date of the move;
  • state the address of the new place of residence and contact information of the person or child; and,
  • state how you think the parenting and any contact schedule could be changed to help support the child’s relationships with the people receiving notice if the relocation takes place.

Notice can be given by filling out the Notice of Relocation form (Form 1) if you are a parent.

The Court may be willing to exempt or modify the notice requirements in certain circumstances, including if there is a risk of family violence (Section 16.8(3)).

Can you move with a child once notice of relocation is given?

Objection may be made by the child’s non-relocated parent or any other person who has contact with the child. If there is no objection within 30 days after receipt of the notice of relocation, and there is no Court order prohibiting the move, the person proposing relocation is entitled to move as of the date proposed in the notice.

If there is an objection within 30 days after receipt of the notice, the person proposing the move may only do so with Court authorization.

The objecting party can object in two ways: 
1. By Standard Form: the objecting party must explain why they object to the relocation and their views on the proposal for parenting time, contact, and decision-making responsibility;
2. By filing a Court Application: the Court must decide whether the move can happen.

After March 1, 2021, parties have a new obligation to attempt resolution out of Court where there is objection to a proposed relocation. If the matter cannot be resolved out of court, a move with the child can only occur with court authorization. In authorizing, the Court considers the best interests of the child as the sole determining factor.

Best Interests Factors and Family Violence Considerations

The new Divorce Act provisions provide a list of factors to determine the best interests of the child which the Court will consider in granting a move. Focused on the child’s physical, emotional and psychological safety, security and well-being, the list includes: 
(a) the child’s needs;
(b) the child’s relationships with each parent and other significant persons in their lives;
(c) each parent’s willingness to support the child’s relationship with the other parent;
(d) the history of the child’s care;
(e) the child’s views and preferences;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
(g) future plans for the child’s care;
(h) each parent’s ability and willingness to care for the child;
(i) each parent’s ability and willingness ability and willingness to cooperate and communicate about parenting matters;
(j) any family violence and its impact, among other things,
  (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
  (ii) the appropriateness of making an order that would require persons to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

In addition to the above, the Court examines additional factors in relocation cases:

  1. reasons for the relocation
  2. impact of the relocation
  3. amount of time spent with the child by each person who has parenting time
  4. whether notice was provided
  5. orders or agreements specifying geographic area
  6. reasonableness of the proposal
  7. compliance with family law obligations

If both parents have “substantially equal” parenting time, the parent deciding to move must show that the move is in the best interests of the child. If a relocating parent has the child in his or her care for the “vast majority” of the time, the parent who is objecting to the move must show that the move is not in the best interests of the child. If the parenting time is somewhere between “substantially equal” and “vast majority,” then the parties share the burden of proving whether the proposed move is in the best interests of the child.

For more information about changes to the Divorce Act and its implications for child relocation, call the family lawyers at Crossroads Law today for a free 20-minute consultation. 

The information contained in this blog is not legal advice and should not be construed as legal advice on any subject. The information provided in this blog is for informational purposes only.