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Amendments to the Divorce Act Regarding Relocation

By Morrison Williams Family Law | May 6, 2020
Overhead View of Movement

Mobility Redefined

Moving is a life-changing event. Whether it’s a promotion that takes you to new province, a career change that demands international relocation, or a change in family situation, relocation is sometimes necessary as the demands of life evolve and priorities change. In normal circumstances, a move presents an opportunity for growth, new experiences, and a novel environment in which to carve out a new reality. For those who have experienced family breakdown, such changes present one of most contested issues: What happens to the children when a parent wants or needs to relocate? 

What is Mobility? 

Mobility is best described as a change in the residence of a child or parent who has rights with respect to decision-making or access to a child. When parents are seeking to relocate with their child(ren), the question becomes whether the relocation is in the best interests of the child(ren).  

Since 1996, courts in Canada have long made relocation decisions on the basis of the seminal Gordan v. Goertz, [1996] 2 S.C.R. 27 decision, which focussed on the “best interests of the child” as the primary consideration when making decisions about parental mobility. For the most part, Courts have been restricted by the parameters of this decision, which provided a test so broad and vague that it may have proven more of a hindrance than a blessing to judges making decisions with so much at stake. In order for parents to vary an existing order or Agreement and relocate with their children, the parent must show that a material change in circumstance has taken place since the time of the order or Agreement which would permit variation. The Gordan decision provided a three-pronged test in order to establish that a material change has taken place: 

  1. There must be a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child; 
  1. The change must materially affect the child; and 
  1. The change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. 

Once the parent seeking to move has discharged the burden of showing the elements of the above-noted test, both parents are required to establish that the best interests of the child are supported by their position. In assessing the best interests of the child, the court will consider the following factors: 

  1. The existing custody arrangement and the relationship between the child and the custodial parent; 
  1. The existing access arrangement and the relationship between the child and the access parent; 
  1. The desirability of maximizing contact between the child and both parents; 
  1. The views and preferences of the child, if they can be reasonably ascertained; 
  1. 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; 
  1. Any disruption occasioned by the child of a change in custody; and 
  1. The disruption to the child consequent on removal from family, schools, and community.  

Courts will weigh these factors holistically and make a determination about whether a material change in circumstance has taken place that would permit relocation. Where the best interests of the child are not served by relocating, the courts have declined to make such orders. A long history of unsuccessful appeals by parties seeking to relocate with their children have illustrated that mobility cases are not often successful and are also difficult to predict.  

Changes to the Divorce Act: Redefining the Test for Mobility/Relocation 

Family law practitioners have long been calling for an overhaul of the Divorce Act, which has not seen substantial amendments since 1985. Relocation decisions have been primarily determined on the basis of the factors outlined in the Gordan decision, with little regard for the changes to the social, economic, and cultural facets of society, including globalization. With the introduction of Bill C-78, which will come into effect on July 1, 2020, eeeeeeeeeeeeeeeeeeee (i.e. relocation). 

New Notice Provisions: 60 days to Provide Notice, 30 days to Respond 

  • Amendments to the Divorce Act now require parents to provide notice of any move to any person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child. If such relocation is to have a “significant impact”, the moving party must provide a minimum of sixty (60) days written notice of the proposed relocation.  
  • Courts have left the phrase “significant impact” open to interpretation by the Courts, to ensure that parties are not making such decisions without judicial oversight. 
  • The amendments to the Divorce Act will require a party who is seeking to relocate with the children to give written notice of the proposed move to any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention which outlines: (a) the proposed date of relocation; (b) the address of the proposed new place of residence and any other contact information for the person and the child; (c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and (d) any other information prescribed by the regulations.  
  • The responding parent who receives notice may object to the proposed by move by completing a standardized form or Application within thirty (30) days of receiving written notice from the party seeking to relocate. The form or Application must set out: (a) a statement that the person objects to the proposed relocation; (b) the reasons for the objection; (c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is det out in the written notice; and (d) any other information prescribed by the regulations.  
  • If no objection is received within thirty (30) days of the proposed relocation, the person proposing relocation may relocate with the child.  
  • The new amendments to the Divorce Act also provides that the Court may, on application, order that the notice requirements do not apply or modify them if the court is of the opinion that it is appropriate to do so, including where there is a risk of family violence.  

New Considerations for Best Interests Test in Mobility Decisions 

  • Since the Gordan decision, the “best interests of the child” has remained the primary consideration in mobility decisions. Despite its weight and importance, family practitioners and parents have long referred to section 24(2) of the Children’s Law Reform Act as a reference point for the “best interests” test, as the best interests test was not explicitly referred to or outlined in the Divorce Act.  
  • The recent amendments to the Divorce Act now incorporate a non-exhaustive list of factors to help aid the Court in making a determination about whether the proposed relocation is in the best interests of the child, in addition to other factors that the court may consider in making their decision.  
  • Most notably, the amendments now permit a court to consider the reasons a person provides for the proposed move, a change which reflects a move away from the stringent test applied in Gordan.  
  • The amendments also allow courts to consider whether the person seeking to relocate has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance. 
  • Given the above, Courts now may take a more holistic approach in determining the issue of relocation as the Court will take into consideration both the impact of the move on the children in question and the rationale behind the move. That said, despite the additional factors that a Court shall take into consideration, the test to determine whether a relocation is permissible will remain child-centric. 

Proving Your Case and Other Considerations 

  • The upcoming changes to the Divorce Act impose new standards on the burden of proof in mobility cases. Where parents have “substantially equal” time with the child (i.e. a shared parenting arrangement), the parent proposing relocation will be required to show that the proposed move is in the child’s best interests. 
  • In sharp contrast, where the parent exercising the “vast majority” of their time with the child is proposing the move (i.e. the parent who primarily cares for the child(ren)), it will be incumbent on the objecting parent (i.e. the parent exercising parenting time or “access” parent) to show that the proposed move is not in the bests interests of the child.  

Ultimately, time will tell whether these changes to the Divorce Act will provide a more efficient and fair process in mobility decisions. As decisions are rendered under this new legislation, the hope among many is that these changes will create clarity in one of the most unpredictable and emotionally charged areas of family law.  

For more information about mobility/relocation and the recent amendments to the Divorce Act, do not hesitate to schedule a consultation with one of our lawyers. 

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