Rash Relocation? – Changes to the Divorce Act regarding the Relocation of Children

On March 1, 2021, the new Divorce Act “the Act” came into effect in Canada, instituting numerous changes to various aspects of the federal divorce and family law regime. While for many family law participants, the most notable of these changes has been the shift in terminology from “custody” and “access” to “decision-making” and “parenting-time”, another major change under the new legislation relates to relocation; specifically, the imposition of notice requirements, and the “best interests of the child” burden placed upon the party seeking to relocate.

Under section 16 of the new Act, where parties share parenting-time and/or decisionmaking authority over a child (whether pursuant to an Order or Agreement)1, and where one party is seeking to relocate with or without the child2, the relocating party must provide formal Notice to the other party(ies) within 60 days of the proposed move.3 The Notice must provide the other party(ies) with details regarding the proposed address, contact information, and the suggested modifications to parenting-schedule(s) to facilitate continued parenting-time.

Upon receipt of the Notice, the recipient party has 30 days to formally object to the relocation. An objection is submitted by filling out the appropriate objection form, or by commencing a family court Application. If no objection is made within the 30-day period, and if there are no court Orders barring the move, the relocating party will be permitted to move on the date stipulated in the Notice.

Where a recipient party properly objects to the relocation, the parent seeking to relocate with the child bears the burden of proving that the relocation would be in the best interests of the child. In determining the “best interests of the child”, the Court will consider the list of factors set out at ss. 16 and 16.92(1) of the Act, which includes but is not limited to: the reasons for the relocation, the impact upon the child(ren), and the amount of time spent by each party with the child. Should the Court ultimately determine that the test has not been met, the relocation will not be permitted.

While the Court retains discretion to decide in favour or against a proposed relocation, it is preferable that parties come to an out of court agreement regarding the relocation. In fact, the new Act is geared at minimizing litigation, and highly encourages parties to attempt extrajudicial settlement whenever possible.

If you or someone you know is seeking or responding to a relocation, it is highly recommended that they consult with a family lawyer who can assist them with properly navigating the relocation process.

1 Parties can include parents, grandparents and/or other individuals subject to a Contact Order
2 Notice must be provided even where the party relocating is not bringing the child, as their relocation impacts the
child’s relationship with that individual
3 There are limited circumstances in which the Court may modify the notice requirements