What happens if you want to move to a new home, city, province or country with your child after you separate or get a divorce.
On March 1, 2021 amendments to the Divorce Act came into effect. Section 16.7 to 16.9 of the Divorce Act set out the rules for how and when a parent can relocate with a child (or children).
If a parent wants to move but is not moving to a new city or town, that parent, who has custody (now called decision making) or access (now called parenting time), must notify any other person who has parenting time or decision-making of their intention to move.
If there is no court order or separation agreement setting out the terms of custody or access, it is safe to assume that the other parent has parenting time rights and/or decision-making rights and therefore must be provided with notice.
Notice of the move must be given in writing and must state the date when the move is going to occur. The notice must include the moving parent’s new address (if there are issues of domestic violence or family violence, the parent can ask a court to waive this requirements).
If a parent wants to move to a different city, province or country (also called relocating), there are additional rules that a parent seeking to move must follow. To relocate, a parent who intends to move needs to provide the other parent with at least 60 days’ notice before the date of the proposed relocation. The notice must be in writing and must set out the following information:
- the expected date of the relocation;
- the address of the parent’s new home and contact information of the person or child(ren);
- a proposal as to how parenting time, decision-making responsibility or contact will occur in light of the relocation; and
- any other relevant information.
Similar to a change of residence, if there are issues of domestic violence or family violence, the moving parent may ask a court to waive this requirements.
Once notice is provided, the other parent has 30 days to state their objection to the move (if they have any). If there is an objection, the relocating parent may need to obtain a court order to relocate with the child(ren). Nothing will prohibit the parent from relocating, but they may not relocate the child(ren) without the other parent’s permission or a court order.
If a court order is required, the relocating parent will have to convince a judge that it is in the best interests of the child to relocate the child. In determining whether the relocation is in the child’s best interest a court will consider:
- 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 or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
- whether the person who intends to relocate with the child complied with the applicable notice requirements;
- any exiting court order, arbitral award or separation agreement;
- the reasonableness of the proposal 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 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.
If a parent plans to move or relocate with a child following separation or divorce, it is prudent to provide notice to the other parent as soon as possible. It is also wise to have a thorough and thoughtful plan about how the child(ren) will maintain a relationship with the other parent and the practical implication of the relocation on the time the child(ren) will spend with the other parent. Finally, it will be important for the relocating parent to demonstrate why the relocation is necessary to further the best interest of the child(ren).