Moving with a Child - Changes to the Divorce Act in 2020

Relocation, or moving away after separation or divorce, is one of the most litigated family law issues. Recent changes to the Divorce Act set out changes to the way relocation issues will be addressed by the Court July 1,2020.

The leading case in this area is a 1996 decision from the Supreme Court of Canada called Gordon v Goertz, in which the Court said that the first step in an application to move after separation is to determine if the relocation constitutes a "material change" in the circumstances of the child. If the move would constitute such a change, the court must then consider several factors to determine whether the move is in the best interests of the child. The parent who wanted to move had to show the move was in the best interests of the child. Importantly, the Court noted there was no presumption in favour of the custodial parent, although their views are entitled to "great respect and the most serious consideration".

Gordon v Goertz, however, did not address issues related to giving notice of a proposed move, or who must bring apply to court to allow or prevent a move.

The changes to the Divorce Act will talk about:

1. the notice a parent must give when proposing to relocate;

2. the factors the court must consider when hearing relocation applications; and

3. which parent is responsible for showing that a move should be allowed or prevented.

"Relocate" will be defined as a move (by a person with parenting time or decision-making responsibility, with or without a child) that could have a "significant impact" on the child's relationship with other people with parenting time, decision-making responsibility or contact with the child, or a person applying for these with parenting time, decision-making responsibility or contact.

Notice

Any move - including a move within the same city- is a change of residence. Under the new framework, a person with parenting time or decision making responsibility is required to give notice to any other party (see above) of a change of their residence or that of the child.

However, where a move is likely to have a "significant impact" on a child's relationship with others, this will be considered a "relocation", and will attract more stringent notice requirements. A party relocating will have to provide 60 days' notice to the other party or parties, of the move in the prescribed form.

The notice must be in writing and state:

· The anticipated relocation date;

· The contact information for the parent and child at the new address;

· A proposal for how parenting time, decision-making and contact could work if the move happens.

A person who receives this notice has 30 days after receiving the notice to file an objection to the relocation, if they don't think that the parent or the child should move. A person who wants to object to the relocation can file a form stating their objection or apply to court for an order preventing the relocation. If there is no objection within 30 days after the notice was received, and there is no earlier order preventing the move, the person who wants to relocate will be able to move on the date stated in the notice.

If a parent is in a position where there is a risk of family violence, they can apply to the court to waive or modify the above notice requirements.

Additional Best Interests Criteria

The amendments to the Divorce Act set out seven additional criteria for the court to consider when determining whether relocation will be in the best interests of the child:

1. the reasons for the relocation;

2. the likely impact of the relocation on the child;

3. the amount of time spent with the child by each person who has parenting time;

4. whether notice was provided;

5. whether there are any orders or agreements restricting where the parent who wants to move can live;

6. whether the proposal for how parenting time, decision-making and contact could work after a move is reasonable;

7. whether the parent who wants to move has complied with previous orders about parenting time, decision-making and contact, and other legal obligations.

Under the changed legislation, the Court may not consider whether the parent applying for the move would relocate or stay if the move was prohibited.

Burdens of Proof

Under the new Divorce Act, the parent who is responsible for showing that a move should be allowed or denied changes, depending on the amount of parenting time each party has.

If the parent who wants to move and the person objecting to the move have "substantially equal" parenting time with the child, the person proposing the move will have to show why the move is in the child's best interests.

If the child is in the care of the parent who wants to move the "vast majority" of the time, the parent opposing the move will have to demonstrate why the move is not in the child's best interests.

It's important to know that the new Act does not define what "substantially equal" or "vast majority" mean. The court will need to describe what these terms mean.

In all other cases where the parenting regime is less clear, both people have to show whether the move would or would not be in the child's best interests.

With significant changes coming to the Divorce Act, it may be difficult to navigate these changes without legal advice. Contact our experienced lawyers at Wise Scheible Barkauskas if you have any questions about the coming changes to the Divorce Act, or if you are considering a move.

By Krista Cossar

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