Parents wanting to relocate will have to undergo a new legal process to get the Court’s approval. The recent amendments to the federal Divorce Act1 have replaced the longstanding principles set out by the Supreme Court in 1996.2 The Divorce Act applies to married couples who have petitioned for divorce.

The amendments introduce a process with three main components:

  1. Notice of a proposed change of residence or relocation
  2. Additional best interests considerations for relocation cases
  3. Burdens of proof that apply in certain relocation cases3

Obligations for Notice and Settlement

Parents are now required to provide notice of an upcoming move to anyone with parenting time, decision-making responsibility or contact time. This obligation applies to any change of residence – local or otherwise. Notice must include the new address and contact information.

The law carves out possible exceptions to the notice rule. For example, in cases where there has been family violence, the requirement may be waived by a Court to ensure safety of the parties.

Where a move is not local and is considered a relocation, the non-moving party can object after receiving notice. Following an objection, the new rules place an obligation on both parents to try and settle the issue out of court. Where these attempts are unsuccessful, the issue will be heard before a judge.4

Best Interests Considerations

Like other parenting decisions, relocation issues are decided in the best interests of the children. The amendments set out specific considerations for determining these best interests in relocation cases:

  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 and how the relocation would affect that arrangement
  4. Whether notice was provided
  5. Previously made orders or agreements specifying a geographic area
  6. Reasonableness of the proposal (for example; distance of the move, age of the child, means of transportation)
  7. Parents’ compliance with family law obligations

Under the new process, courts are directed not to consider whether the moving parent will move without the child. Such inquiries have been known to create an unfair “double-bind” for parents, where neither answer is favourable.5

Burdens of Proof

In a hearing or trial, one party will have the burden of proving their case – that the relocation is in the best interests of the child, or that the child should stay. The amendments alter that burden of proof depending on the parenting scenario.

Where parenting time and decision-making responsibility are substantially equal, the person proposing the move will have the burden of proof. Where one parent is primarily responsible for the child, the person opposing the move will have the burden.

Determining the parenting scenario will require looking to existing agreements or orders. The decision will not be made based on percentages of time spent with each parent.6

Similar changes have been made already to the British Columbia and Nova Scotia acts that apply to non-married parents, or married parents who have not petitioned for divorce. The changes to the Divorce Act are more similar to the changes made to the Nova Scotia Act, but there are some differences.

Lawyers at BOYNECLARKE LLP can help you navigate the legal issues of relocation. If you are looking for advice, please call 902-469-9500 to schedule your consultation with a member of our Family Law team.

1 Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, 1st Sess, 42nd Parl, 2019 (assented to on 21 June 2019) [Bill C-78]; Divorce Act, RSC 1985, c 3, (2nd Supp).

2 The Supreme Court of Canada’s decision in Gordon v. Goertz, [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52 has been the governing law on relocation since 1996.

3 Canada, Department of Justice, “Legislative Background: An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (Bill C-78)”, (Ottawa: DOJ, January 2019).

4 Bill C-78 supra note 1, cl 12.

5 Ibid.  

6 Ibid.