Whether you’ve been offered your dream job or are ready for a fresh start, planning a move can be an exciting yet nerve-wracking experience. And, if you’re a co-parent, deciding whether (and where) to move can have significant implications for both parents and children. So, what do divorced spouses need to know about relocation and how it pertains to family law?
In this blog post, we’ll explore the law relating to relocation in family law. Unless otherwise specified, the information below refers to how relocation is treated under the Divorce Act, RSC, 1985, c. 3 (2nd Supp.) and may not apply to separated common-law spouses.
When is Relocation a Concern in Family Law Cases?
The Divorce Act, RSC, 1985, c. 3 (2nd Supp.) governs relocation and resulting legal issues for divorced spouses.
Different relocation issues can arise in family law cases. For example, a spouse may be planning a move and intending to move the child with them. Or, alternatively, a spouse may be planning a move and unsure how that move will impact their access rights to their child.
Any relocation that impacts one or both parents’ parenting time will usually attract family law consequences. In this sense, remember that not all relocations result in family law issues: a parent moving to another province will usually have different consequences than, say, a parent moving to the other side of town. The latter will typically be classified as a “change of residence” rather than a relocation under the Divorce Act, RSC, 1985, c. 3 (2nd Supp.).
Keep in mind, too, that the terms of existing court orders can impact a relocation (independent of the other parent’s present feelings regarding the relocation).
Changing Your Residence Under the Divorce Act
If a person has parenting time or decision-making responsibility for a child and intends to either change their place of residence and/or their child’s residence, they must provide written notice to any other person who has parenting time, decision-making responsibility, or contact for that child. The written notice must include the date on which the change of residence will occur, the new address, and the contact information for the parent and/or child.
So, if you’re planning to move to a new residence (say, moving across town), you’ll need to provide notice as outlined above. However, in some circumstances, the court may waive the requirement to provide notice (for example, in cases where there is a risk of family notice if the information in question is disclosed).
Relocating Under the Divorce Act
If a person has parenting time or decision-making responsibility for a child and intends to relocate (whether with or without the child), they must provide notice at least 60 days before the date they intend to relocate to any other person who has parenting time, decision-making responsibility, or contact for that child.
The notice must include the anticipated relocation date, the new address, contact information for the parent and/or child, and a proposal regarding how parenting time, decision-making responsibility, or contact will be handled in light of the relocation.
Like a change of residence, in some circumstances, the court will waive the requirement to provide notice, such as in cases with a family violence risk.
Navigating a Change of Relocation After Notice Has Been Provided
After notice of relocation is provided, any individuals who received service (i.e., other individuals with parenting time, decision-making responsibility, or contact for the child) can either agree or disagree with the proposed relocation.
In practical terms, one of two things can happen at this stage. If the individual or individuals acquiesce to the proposed relocation, then the parent planning to relocate is entitled to relocate with or without the child, as the case may be.
However, if the individual or individuals object to the proposed relocation, they have 30 days after the day they received notice to file an objection with the court outlining why they object to the proposed relocation and their views on the proposal for the exercise of parenting time, decision-making responsibility, or contact under the Divorce Act, RSC, 1985, c. 3 (2nd Supp.). Note that the parent intending to relocate cannot move the child until the court makes a decision regarding the relocation.
Objections to Relocation in Family Law
When an individual objects to the proposed relocation, the court will be called upon to determine whether relocation is appropriate. In making their decision, the court will look at the child’s best interests, meaning that the court will consider the child’s physical, emotional and psychological safety, security, and well-being above all else. In a relocation case, the court will also consider the following pursuant to the Divorce Act, RSC, 1985, c. 3 (2nd Supp.):
- Why is the parent planning to relocate?
- What is the impact of the relocation on the child?
- What involvement do the parents have with the child (for example, is the parent who is planning to relocate not involved in the child’s life)?
- Did the parent planning to relocate follow the appropriate notice rules?
- Does a court order or agreement contravene the proposed relocation?
- Is the proposed parenting arrangement reasonable?
- Have the parents complied with their family law orders and agreements in the past?
The Burden of Proof in Relocation Cases
A different parent may have the burden of proving whether the relocation will be in the child’s best interests, depending on their circumstances. If the parents share equal parenting time, the parent planning to relocate has the burden of proving that the relocation is in the child’s best interests. If the parent planning to relocate cares for the child most of the time, the parent objecting to the relocation will have the burden of proving that the relocation is not in the child’s best interests.
Final Thoughts on Relocation in Family Law Cases
Deciding to relocate—especially when you are a separated parent—can be a challenging experience, particularly if the other parent objects to your proposed relocation. However, with proper preparation, such as confirming that you are not prohibited from relocating due to a court order, providing the appropriate notice, communicating with your child’s parent, and, if appropriate, attending court with the help of an experienced family law lawyer to determine whether the relocation can happen, you can ensure that the appropriate steps have been followed and get the information you need to move forward.
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Tierney Stauffer LLP’s skilled family law and divorce lawyers are passionate about helping clients navigate the complicated family law landscape following a separation or divorce. We empower clients with knowledge regarding their rights, obligations, and options to help them make the best decisions for their situation.
Tierney Stauffer LLP has served Ottawa since 1982, expanding across the province to offer our wide-ranging legal services to Ontarians. To speak with an experienced family law and divorce lawyer, contact us online or call 1-888-799-8057.