Can I move with my child?
Relocating with a child after divorce or separation is a process that requires careful consideration and planning. It’s important for relocating parents to understand and adhere to the notice requirements and to provide a clear and detailed plan for the proposed relocation that aligns with the child’s best interests.
In 2021, changes to the Divorce Act created a new framework for changing a child’s residence and relocation with a child. The Parenting & Support Act includes a similar framework. This article summarizes only relocation requirements under the Divorce Act.
The rules governing a relocation differ from a change in residence. It is important to first determine whether or not you are seeking a change in residence or a relocation.
Relocation is expressly defined in the Divorce Act as follows:
Relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility – or who has a pending application for a parenting order – that is likely to have a significant impact on that child’s relationship with
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- A person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
- A person who has contact time with the child under a contact order.
Thus, relocation refers to a change which is likely to have a significant impact on the child’s relationship with the non-relocating parent; while a change in residence is less consequential. For example, moving a child’s residence within the same community is likely not to be considered a relocation whereas moving a child’ residence to the other side of the country likely is.
A parent seeking to relocate with their child must provide notice to the non-relocating parent. If no objection to the relocation is raised by the non-relocating parent, then the relocation is deemed to be authorized. This puts a obligation on the non-relocating parent to object if they do not agree to the move.
Notice Requirements for Relocation
If you are seeking a relocation with your child, you must provide written notice at least 60 days in advance of the move. The notice must include the following details:
i. Date of the move;
ii. New address;
iii. Proposal for how parenting time/decision making/contact time will work and “any other information prescribed by the regulations”. (Notice of Relocation Regulations SOR/2020-249);
iv. Notice must be given to anyone that has parenting time, decision making or contact under a contact order.
Objection Requirements
If you receive a notice for relocation, and you disagree with the proposed relocation, an objection must be provided within 30 days of receipt of the notice. The objection must include the following details:
i. Reason for objection;
ii. Your views on the proposal for exercise of parenting time/decision-making/contact, and “any other information prescribed by the regulations”.
NOTE: Only a person with parenting time or decision-making can object to a relocation notice. Thus, an individual with contact time pursuant to a contact order while entitled to notice of the relocation, is not entitled to object.
Notice of Relocation and Objection to Relocation forms can be found in the Notice of Relocation Regulations SOR/2020-249.
Factors Considered by the Court
There are a number of factors the court considers on a relocation application. While best interests of the child remain the paramount consideration, this is considered alongside a number of specified legislative factors set out in s.16.92 of the Divorce Act. They are as follows:
i. Reasons for the relocation;
ii. Impact of the relocation on the child;
iii. Amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
iv. Compliance with notice requirements by the parent seeking to relocate;
v. Existence of order or agreement that specifies the geographic area in which the child is to reside;
vi. Reasonableness of the proposal, including location and travel expenses; and
vii. Compliance with legislation/past orders/agreement and likelihood of future compliance.
Factor not to be considered
When a court is asked to determine an application for relocation, the court cannot consider whether the person who is seeking to move intends to relocate without the child in the event the court prohibited the move. Therefore, if you are not successful in your application to relocate with your child, this could result in the court giving primary care to the non-relocating parent.
If you are considering a relocation or are uncertain if your move is a relocation or a change in residence, you should seek legal advice from a family law lawyer.
Jennifer L Schofield is counsel at Kennedy Schofield Lutz Lawyers. This article is meant to offer basic legal information and should not be relied upon for legal opinion. You can contact Jennifer L. Schofield or any of our lawyers at (902) 826-9140 for advice on your specific mater.
