This is the second in a series of posts covering amendments and updates to the Divorce Act of Canada that come into effect March of 2021. Our previous post in the series, Best Interest of the Child can be found here.
The amendments to the Divorce Act contain new provisions that address issues relating to relocation, which is when one parent wants to move out of their existing town or city with a child. Seeking to relocate with a child after separation and divorce is a is heavily litigated issue as it is an all or nothing proposition; either the parent is allowed to move with the child or they aren’t. Mobility and relocation issues often do not lend themselves well to compromise or collaborative processes. The leading case in this area is the Supreme Court of Canada’s decision in Gordon v. Goertz. This case outlines a two part test that the Court shall apply. First, the Court must be satisfied that the relocation constitutes a material change of circumstances for the child. For example, if the relocating parent is seeking to move from south Calgary to Airdrie and the other parent has parenting time every other weekend, the relocation may not constitute a material change of circumstance for the child as the existing parenting arrangement can continue. On the other hand, if one parent is seeking to move from Calgary to England and the child has historically had equal time with both parent, that would clearly create a material change of circumstance.
Once the first part of this test is met, the Court shall consider the following factors, in combination with determining the best interest of the child:
- The existing custody and access arrangements and relationship between the child and each parent;
- The desirability of maximizing contact between the child and both parents;
- The views of the child;
- 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; and
- The impact of the potential disruption on the child of either a change in custody or removal from their current environment.
The upcoming amendments to the Divorce Act set out a three part framework for changes of residence and relocation:
- Notice of a proposed change of residence or relocation
- Additional best interests criteria for relocation cases
- Burdens of proof that will apply in certain relocation cases
Whether a move is across the country or across the city, it is considered a change of residence. The new framework requires any person with parenting time or decision making responsibility to provide notice of the intended relocation to any other person that has parenting time and/or decision making responsibility. In some instances this can include grandparents or anyone else with contact rights. The required notice must be provided at least 60 days before the proposed move and must include the new address and contact information. The party providing notice must also propose how the parenting/contact arrangement could be changed and facilitated on a go forward basis. The notice of a proposed relocation is required even if the relocating person is proposing to move without the children. This is because the child’s relationship with that person will be impacted as a result and decisions need to be made about ongoing contact/parenting time and decision making.
Once the notice of relocation is provided, the other impacted parties can object to the relocation. The parties will be encouraged to negotiate a resolution as the amendments to the Divorce Act stipulate that the parties have a new obligation to attempt to resolve matters without the Court’s intervention. However, if a resolution does not seem possible, the objecting party object by way of a standard form or by bringing a Court Application. Again, the ultimate consideration on whether a relocation will be approved by the Court remains the best interests of the child.
If there is no objection to the proposed relocation within 30 days of receiving the notice and there is no Court Order which prohibits the move, the relocating party shall be entitled to move on the date provided in the notice.