The new Divorce Act comes into force on March 1, 2021. One of the difficult issues for a judge or arbitrator is the question of a mobility application where one parent wishes to move to another city, province, or country with the children. The new Divorce Act, section 16.9, requires mandatory notice in writing 60 days prior to a relocation if a parenting Order is in place. The interpretation of these sections will play out in the case law in the next few months; however, on strict interpretation of the Act, it is important to provide notice of a move with children out of the province, and the other parent should respond to that request within the specified time limit under the Act. Notice of relocation must occur in writing at least 60 days in advance with the prescribed form.
A notice must contain a form of proposal on how the other parent shall spend parenting time with the children and the reasonableness of these proposals will be assessed, if the matter is determined by the Courts.
The responding party can object to the proposed relocation by either delivering the Notice of Objection Form (s.16.91 (2)) or by filing a court application within 30 days of receiving the Notice of Relocation. After the 30 days has elapsed, the party relocating with the child can do so, as of the date of Notice, if the relocation is authorized by the Court, or Notice has been served and no objection/application has been filed and if there is no order prohibiting the relocation (s.16.91(1)).
Given the complexity of these mobility applications, keep these new sections in mind when considering relocation issues. Consult with counsel on these notice provisions. Consider mediation as an alternative to resolve these important issues prior to proceeding in litigation. The intention of the notice provisions is to allow timely and proper dialogue on these important issues between parents.
