Read This Before Moving With Your Kids After Separation Or Divorce

divorce, relocating children, parents, child mobility, kids, protect, divorce act, move, parents, Divorce Act, Bill C-78, common law, parenting, contact, Gordon v Goertz, reason, impact, parenting order, travel expense, place of residence, best interests

Relocating Children After Divorce In Alberta Calgary Edmonton

Relocating children after divorce causes many problems with the other parent and the law. Obviously both parents agreeing to a move is always best. However, often one parent objects to the move. They want to see their child or children more than once in a while. Before making changes, book a consultation with one the Kahane Law Office family law lawyers who deal with child mobility issues. They explain your options and recommended steps to protect yourself and your family. With offices in both Calgary and Edmonton, Alberta we help many clients each day with these and other related issues.

Divorce Act Provisions For Relocating Children After Divorce

If one parent decides to move or relocate with the child/children a significant distance that impacts the parenting rights of the other parent, the moving parent has to file a mobility application if the non-moving parent will not consent to such a move or relocation. Canadian law sets out to clear up the rules surrounding relocating children after divorce. Section 16 of the current Divorce Act (Canada) sets out the overriding principle in a mobility application. For example, what is in the best interests of the child however, any further legislative clarification was missing. Further there is no existing provincial legislation in Alberta (unlike BC) outlining factors that a court should consider in a mobility or relocation application. To fill the legislative gap, the courts relied on the leading case that dealt with the mobility issue i.e. Supreme Court of Canada’s decision in Gordon v. Goertz [1996] 2 SCR 27.

New Legislation In Alberta For Divorced Parents Moving With Children

This is all about to change as effective July 1, 2020 the changes passed by our Parliament in 2019 amending the Divorce Act (Canada) come into force. And one of the significant changes is the addition of detailed clauses regarding ‘Relocation’ mainly to provide legislative clarification on this highly litigious issue. As stated in the summary of Bill C-78, the enactment amends the Divorce Act to, among other things, “establish a framework for the relocation of a child.”

Definition Of “Relocating” Children After Divorce

Under the new provisions of the amended Divorce Act, “relocation” has been defined as a move that is likely to have a significant impact on a child’s relationship with someone who has (or is applying for) parenting time, decision-making responsibility or contact (see new section 2(1) of the new Divorce Act).

Required Steps For The Parent Moving With The Kids

Under the new provisions, anyone who proposes a relocation must first provide a notice to the non-moving party. Notice requirements are specifically set out in a prescribed form. The notice must provide specified information at least 60 days before the relocation. See section 16.9 (1) of the new Divorce Act for more details. One of the main reason for introducing a requirement to provide 60-day advance notice of a proposed relocation is to helps protect child’s relationship with the non-moving party.

Along with the timing for notice, the changes to the Divorce Act (Canada) also specifies the form of Notice, content of the Notice (to include expected date of the relocation, the address of the new place of residence, proposed new parenting and contact arrangements), and rules for objecting to a proposed relocation.

Moving Away From The Key Common Law Case

Until the new changes come into force, the “ultimate question” put by the Supreme Court of Canada in Gordon v. Goertz keeping in view section 16 of the existing Divorce Act (Canada) has been: what is in the best interests of the child in all the circumstances, old as well as new? The amendments to the Divorce Act and the new relocation provisions still prioritize the best interests of the child. However, effective July 1, 2020 the court must consider the specific factors listed in the amended Divorce Act (Canada). This changes the rules from the factors listed in Gordon v. Goertz.

For example, the first factor specified by the Parliament in the amended Divorce Act, reasons for the relocation, explicitly overrules the Supreme Court of Canada decision in Gordon v Goertz. The Supreme Court of Canada held that the reasons for a relocation should generally not be considered. However, the Parliament made it clear that reasons for a relocation shall be considered effective July 1, 2020. The rationale was that it directly relates to the best interests of the child.

Additional Factors To Determine The Best Interest Of The Child

Section 16.92 (a) of the Divorce Act adds factors for the Court to consider for parents contemplating relocating children after divorce. For example, it includes the following factors:

The court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

  1. reasons for the relocation;
  2. impact of the relocation on the child;
  3. amount of time spent with the child by each person who has parenting time. Or, alternatively, with a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
  4. whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.‍9, provincial family law legislation, an order, arbitral award, or agreement;
  5. existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
  6. reasonableness of the proposal of the person who intends to relocate the child. Specifically when the proposal varies the following: The exercise of parenting time, decision-making responsibility or contact. This takes into consideration, among other things, the location of the new place of residence and the travel expenses; and lastly
  7. whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations. These obligations include those under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

Guidelines On Mobility Issued By The Government

As per the technical guide provided by the Department of Justice to provide information about the changes to the Divorce Act. It states: “Providing an explicit list of factors that the court must consider helps improve the consistency and predictability of outcomes. Parties will be better able to prepare their relocation proposals and objections. No factor is determinative, but factors provide guidance to parents and courts.”

To avoid any confusion and in accordance with the existing case law, the Parliament has made it clear. They state: “In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate”. See section 16.92 (2) of the new Divorce Act for the details.

Burden Of Proving Factors For Relocating Children After Divorce

Another important change regarding relocation are the new provisions dealing with the Burden of Proof i.e. section 16.93 (1)(2)(3) and section 16.94 of the new Divorce Act. For example, it specifies when:

  • parents spend substantially equal time with a child. It is up to the moving-parent to prove that the relocation is in the best interests of the child;
  • the child spends the vast majority of the time with one parent and that parent seeks to relocate with the child. In that case, the non-moving parent objecting to the relocation must demonstrate that it is not in the best interests of the child;
  • Sections 16.93(1) and 16.93(2) do not apply. Then each parent must demonstrate why the proposed relocation is or is not in the best interests of the child; and lastly
  • For interim orders, the court can disregard the burden of proof requirements included in s 16.93.

It is important to note that the change in law treats a “change of residence” and a “relocation” differently. In particular, the notice requirements are different. Section 16.8 addresses notice of a change of residence of the child. Section 16.9 addresses notice of a proposed relocation. The Bill C-78 that amends the Divorce Act, among other things, and contains the new provisions on Relocation can be viewed here:

Help With Relocating Children After Divorce

The whole family law team at Kahane Law Office wants to help protect your family. Child mobility includes its share of challneges. If you need help understanding how the amendments impact your situation, please feel free to contact one of our family law lawyers. With offices in both Edmonton and Calgary, Alberta, we help with these issues frequently. Email us today with this email or give us a call at 403-225-8810 in Calgary, or 780-571-8463 in Edmonton, Alberta.