Kids on the Move: What the Changes in the Divorce Act Mean for Mobility

November 19, 2019

You have landed your dream job, but it is on the other side of the country. Your company is restructuring and your new office is in the next town. Your ailing parent requires your care – in another province. Your former spouse is in the military and is being relocated. There are many reasons why parents need to move, and amendments coming to the Divorce Act in 2020 recognize the added difficulty of determining parenting arrangements when a party asks to relocate with the children. In the first major update to the Divorce Act since 1985, the road to relocation will become clearer, but is not without a few potholes.

The amendments to the Divorce Act, coming into force in July 2020, mean a long overdue update to how the relocation of children is handled. These matters are often the most difficult because they are among the most litigated.[1] The amendments provide new procedural requirements for notice of a relocation, require the consideration of additional factors when making an assessment of the best interests of the child, and allocate burdens of proof for the parties to mobility cases.

In some aspects, there are clear guidelines for parents and family law practitioners while in other aspects, the waters have been muddied. As family law is largely driven by the common law, the new provisions will require the interpretation of the Court to provide further guidance. While the amendments to the Divorce Act finally encompass a definition of the “Best Interests of the Child”, one of the most fundamental underpinnings of family law matters, it created new parenting terminology which was left undefined and could create new questions where the language has not yet been interpreted.

For an overview of the major changes coming to the Divorce Act, see ‘A Primer to the Amendments to the Divorce Act’ by Cox & Palmer Partner, Jacqueline Boucher, published November 14, 2019.

NOTICE PROVISIONS

Before you start packing boxes, parents who are moving need to give notice. If your move takes you to a new residence – but within the same community – you need to provide notice in writing that details the new contact information for the child and the effective date. If your proposed move is outside of the community where you currently reside, the move may reach the threshold of a relocation, where more stringent rules will come into play.

Under the amendments to the Divorce Act, parents with parenting time or decision-making authority will be required to provide at least 60 days’ notice of any proposed relocation that will have a “significant impact” on another party having parenting time, decision-making authority or contact with the child pursuant to a Court Order or Agreement. The process for giving notice has been standardized by requiring the use of a form prescribed by regulations. While the standard form is not yet available, pursuant to the legislation, it will need to contain at least the following information:

  • The anticipated relocation date;
  • The proposed address and updated contact information; and
  • A proposal for a revised parenting plan indicating how parenting time, decision-making and contact will be facilitated in light of the relocation.

There is no definition of what constitutes a “significant impact”, leaving it to the Courts to develop a line of jurisprudence to lend such guidance. Whether a “significant impact” and a “material change in circumstances” are analogous terms in this context remains to be seen.

The parent receiving notice of an intended move can object, and how they do so will determine the next step in the process. If a parent signals their objection by using the standard form, the other parent will be responsible for deciding whether to proceed with a mobility application to the Court. An objecting parent can also trigger the Court’s involvement by launching an application themselves as a means of relaying their objection. If objecting by using the standard form, the objecting party will need to set out, at a minimum, the following:

  • Their objection to the proposed relocation;
  • The reason(s) for their objection; and
  • A response to the revised parenting plan proposal included in the notice of relocation.

Regardless of the procedure in which the party objects, the objection must be made within 30 days of receiving notice of the proposed relocation. If no objection is received within 30 days and there is no order in place that would otherwise prohibit the relocation, the party is free to relocate with the child.

The amended Divorce Act also offers several new sections wherein the pervasiveness of family violence is addressed and relocation is among them. The Court has the authority to waive or modify notice requirements where warranted and a risk of family violence is an explicit consideration.

EXPANDING THE BEST INTERESTS CONSIDERATION FOR MOBILITY MATTERS

While all cases involving children are determined on the basis of the “best interests of the child”, it was not explicitly defined in the Divorce Act. Among the major changes to the Divorce Act is the inclusion of a non-exhaustive list of factors to guide a Court’s assessment of a child’s best interests. The revised mobility provisions add seven additional factors for the Court to consider when considering the relocation of a child.

The Supreme Court’s seminal decision on mobility is Gordon v Goertz [1996] 2 SCR 27; 1996 CanLII 191 (SCC), which disallowed a consideration of the reasons for the move. The reason a parent seeks to move is often so directly intertwined with that parent’s plan for the child’s relocation that it became an elephant in the courtroom. The amendments to the Divorce Act recognize this and now permit the reason for the relocation to be addressed head on.

THE IMPACT OF THE MOVE ON THE CHILD

The impact of the proposed relocation on the child is now an additional consideration under the best interests’ assessment in a mobility matter. While little guidance is given in the legislation as to how a court will make such an assessment, it is clear that a parent seeking to relocate should be prepared to present a child-focused plan for their proposed move. It is much easier for the Court to assess how a child is faring in the status quo situation but more challenging to determine how a child will be affected in new surroundings. It is important for the relocating parent to demonstrate to the court how the child’s continuity will be maintained if the proposed move is granted. A child-focused assessment of the educational, recreational and support-based resources available in a new community should be undertaken with a view to the specific needs of the child. Such a comparison should not denigrate the status quo in hopes of a relocation being granted but should be an honest assessment of how a child’s needs will be met in a new location.

PARENTING TIME

Courts will now explicitly be required to consider the current parenting arrangements when assessing the best interests of the child in a mobility matter. The more time a child spends in the care of the other parent or another person, could suggest a greater impact on the child in the event a proposed relocation is granted. The parent proposing to move would need to demonstrate how the impact of the change in parenting time would be addressed to ensure relationships are not severed by the move.

PROCEDURAL CRITERIA

The Divorce Act will also consider certain procedural aspects of mobility matters which can inform their assessment of the best interests of the child. These factors include:

  • Have the parties complied with the notice provisions;
  • Are there specific geographical restrictions in the current parenting order or agreement;
  • Is the proposed relocation reasonable considering the circumstances of the parties and the child; and
  • Are the parties currently compliant with their existing legal obligations?

REMOVAL OF THE DOUBLE – BIND

While it will now be permissible to ask a parent the reason for their proposed relocation, asking if they would proceed to relocate if the child is not permitted to move is no longer allowed. The often-impossible question placed parents in the position of either stating they would be prepared to move without the child or that the move would not occur should the child not be permitted to relocate. Prohibiting the question also prohibits the court from drawing inferences about the move or about the parent which would fall outside of an assessment of the best interests of the child.

BURDENS OF PROOF

The amendments to the Divorce Act clarify the burdens of proof in mobility matters but also add a level of vagueness.

For parents with “substantially equal” time with the child, the parent who proposes to relocate will bear the onus of demonstrating the move is in the child’s best interests. When the child spends the “vast majority” of their time in the care of the parent proposing to relocate, the party opposing the move would bear the burden of showing the move is not in the child’s best interests. This is largely reflective of how the case law in this area of law has developed, however, it remains problematic for practitioners to advise clients objecting to relocations because “vast majority” remains undefined.

Unlike the Federal Child Support Guidelines, which provide percentages for determining when parenting time triggers a corresponding change in support obligations, the mobility provisions of the Divorce Act were left deliberately vague. While the purpose for doing so was to ensure parents were not preoccupied with obtaining a specific percentage of parenting time as opposed to basing parenting arrangements on the best interests of the children, the resulting problem when it comes to relocation is determining what constitutes a “significant impact” and how much time is considered a “vast majority”.

CONCLUSION

Mobility matters are difficult legal issues to navigate. The amendments to the Divorce Act do little to change that. Relocation will usually mean a substantial change for the child and substantial changes for those who regularly care for the child – be they parents or others with contact orders. Whether you are proposing to move with a child or you are faced with notice that another parent is seeking to relocate, obtaining legal advice is critical, as often times litigation will be required. Cox & Palmer has a group of dedicated lawyers who are watching the developments in this area of law and would be pleased to assist you in determining your options when it comes to relocation matters involving children.

 

[1] Canada, Department of Justice Canada, The Practice of Family Law in Canada: Results from a Survey of Participants at the 2016 National Family Law Program (2016) by the Canadian Institute for Law and the Family at 12.

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