Changes to the Divorce Act (Part II)

One of the most litigated family law issues has been that of mobility—i.e., a parent relocating with the child of the relationship to a new jurisdiction.  Relocation is defined as “a change in the place of residence of a child…that is likely to have a significant impact on the child’s relationship with the other parent”.

The new and improved Divorce Act sets out a detailed procedural and substantive regime to govern relocation/mobility cases.  

For example:

  • A parent who intends to relocate must give at least 60 days written notice to the other parent;
  • A parent who receives a notice of intention of the other parent to relocate with the child will have 30 days to serve a written notice of objection on the parent proposing to relocate or to make an application to the court objecting to the relocation of the child;
  • If a notice of objection is served, on the parent seeking to relocate with the child, that person is obliged to seek court approval for the move.

The judge is required to made a decision vis-à-vis relocation based solely on the “best interests” of the child.  The Divorce Act now provides criteria the judge must take into consideration when determining whether the move is in a child’s best interests:

  • The reasons for the relocation;
  • The impact of the relocation on the child;
  • The amount of time spent with the child by each person who has parenting time and the level of involvement in the child’s life of each those person;
  • Whether the person who intends to relocate the child complied with any applicable notice requirement;
  • The existence of an order or agreement that specifies the geographic area in which the child is to reside;
  • 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; and
  • Whether each person who has parenting time or decision-making responsibility has complied with their obligations under family law legislation, an order or agreement, and the likelihood of future compliance.

The Divorce Act amendments also establishes burdens of proof to apply to relocation cases:

  • If the parties have substantially equal time with the child, the party seeking to relocate with the child will have the burden of establishing that the relocation of the child is in the best interests of the child;
  • If the relocating party has the child for “the vast majority of the time”, the onus of establishing that the relocation is not in the best interests of the child will be on the objecting parent;
  • In any other case, both parties have the burden of proof, and there is no onus or presumption about whether or relocation should be permitted.

While there is no perfect scheme for addressing relocation cases, which almost always involve significant disruption for the child, whatever the outcome, the procedural and substantive additions to the Divorce Act governing relocation will at least be an improvement over the present legal quagmire. Having clear, child-focused presumptions about relocation and a clearer process will hopefully help to reduce uncertainty and litigation and help planning and settlements, though the new provisions continue to have discretionary elements.  As such, some uncertainty will remain in this area.

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