Moving With Your Child – What You Should Know About Relocation After Separation
By David Kim, Calgary Family Lawyer
A common step to take after separation is to move away from your former partner. However, if there are children that you wish to bring with you, and depending on how far you wish to move, there are some things you need to first consider.
What is the Difference Between Moving vs. Relocating?
Simply, a relocation is a move that is significant enough to impact the parenting time of any parent. Therefore, moving down the street or within the same city is generally not seen as a relocation but moving to a different city, province, or country, is. It also does not matter if you relocate by yourself or with the child because your parenting time will be affected if you move by yourself while the other parents’ time will be affected if you move with the child – both scenarios are considered to be relocations.
You Must Give Notice
It does not matter if you move or relocate – you must first notify the other parent. However, the amount of notice you need to provide is different depending on if you are moving or relocating.
If you are moving, you must notify the other parent:
- The date you are moving
- Your new address
- Your new contact information
(These are mandated by Section 16.8 of the Canada Divorce Act)
If you are relocating, you must:
- Notify any party who has either parenting time or contact time with the child (eg. grandparents and guardians) at least 60 days before your moving day
- Provide specific details about the move in a Notice of Relocation form which includes information such as:
- When the move will take place
- Your new address
- Your new contact information
- How you think the parenting and contact schedule could be changed to support the child’s relationships with these other parties
(These are mandated by Section 16.9 of the Canada Divorce Act)
It is important that you do not unilaterally move or relocate the child without proper notice because this may be seen unfavorably by the courts. For example, in the case of PLC v. CG, 2018 ABQB 15, a mother applied to relocate the child and the court granted her application based, in part, on the fact that the father previously relocated the child unilaterally and therefore the father was seen as the less responsive and reasonable parent.
What Happens After Notice?
After you have provided notice, the other party must object to the child’s relocation within 30 days using the Objection to Relocation form (or by making a court application to prevent relocation). If they do not object in the proper time, and if there are no court orders in place that restricts or forbids relocation, you are permitted to relocate the child.
*(It is important to note that no one can object to your own relocation, only the child’s relocation. Furthermore, only a parent may object to the child’s relocation; parties that merely have contact time with the child, such as grandparents and guardians, may ask that an updated contact Order may be put in place after the relocation.)
If the other parent objects to you relocating with the child, the next step is to make an application to court for permission to relocate the child. Then, the main question the court will ask is: what is in the best interests of the child?
The court will apply the legal test set out in the landmark Supreme Court of Canada case, Gordon v Goertz which presents several factors, now known as “Gordon Factors”, that must be considered. The court will also consider factors set out in Section 16.92 of the Divorce Act.
The Gordon Factors
Some of the factors that the court will consider in an application for relocation are:
(a) the existing custody arrangement and relationship between the child and the custodial parent
(b) the existing access arrangement and the relationship between the child and the access parent
(c) the desirability of maximizing contact between the child and both parents
(d) the views of the child
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child
(f) disruption to the child of a change in custody
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know
Section 16.92 of the Divorce Act
The court will consider these additional factors when trying to determine what is in the best interest of the child:
(a) the reasons for the relocation
(b) the impact of the relocation on the child
(c) 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
(d) whether the person who intends to relocate with the child complied with any applicable notice requirements
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside
(f) 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
(g) 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
Burden of Proof
If you are the relocating party who wishes to relocate with your child, it will be up to you to prove that relocation is indeed in the best interests of the child. If, however, the child spends most of their time in your care (i.e. with the relocating parent), the other parent who objects to the relocation will have the burden to prove that the relocation is not in the child’s best interests.
Ultimately, relocation can be a long and complicated process that may require several appearances before multiple levels of court before a determination is made. If you are considering relocating with your child, our highly dedicated team at Crossroads Law would be glad to advise and assist you in this next chapter of your journey. Please contact us for a free consultation today.
