Last month we looked at some of the changes coming to the Divorce Act with regard to parenting. In the updated Act, the Government of Canada will add further clarity on the law related to mobility issues – where one parent wants to move with the child. It would seem that guidance is desperately required on this matter: in a 2016 survey of lawyers and judges, 98% of them agreed that family law issues were harder to settle when a relocation was involved.
The updated Act defines two specific terms related to mobility. A ‘change in residence’ is any move, including a local move. This can be contrasted with a ‘relocation’, defined as as a change in the place of residence of a child or a parent that is likely to have a significant impact on the child’s relationship with another parent or a person who has contact with the child under a contact order.
The updates to the Divorce Act will provide a framework for changes of residence and relocation that includes three main components:
1. Notice of proposed change of residence or relocation;
2. Additional best interest criteria for relocation cases; and
3. Burdens of proof that would apply in certain relocation cases.
A person with parenting time or decision making responsibility will be required to give notice to any other person with parenting time or decision making responsibility about a change in residence.
For a move that is defined as a relocation, the person planning to move must provide at least 60 days notice before the proposed move and include the following information: the date of the move, their updated contact information AND a proposal about what the parenting arrangements would look like after the move.
If the non-moving party does not agree to the relocation they have a duty to try and resolve issues with a Family Dispute Resolution Process. If that doesn’t work, they must formally object by filing a court application to prevent the move within 30 days of receiving the notice.
If there is no objection in the prescribed time frame, the person who proposed the move is entitled to move.
The strict and (in this writer’s opinion) short timelines for notice will provide certainty for parents who wish to make a move. However, the practicality of being able to provide a response within 30 days remains to be seen. In theory, a parent who objects to a move may have to retain counsel, note their objection, arrange a dispute resolution process like mediation, attend that dispute resolution process and file a court application inside of a month. This could present difficulties.
If the person opposing the move files an objection and the parties cannot come to an agreement it may be up to the court to decide. The test, like all tests related to parenting, is what is in the best interest of the child. In addition to the parenting considerations outlined in last months blog, the court will consider the following:
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the 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;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
A court can NOT consider whether the parent would move without the child if the move were prohibited or if they would stay if the move were prohibited. The focus will stay on the ultimate test which is the best interest of the child.
The updated Act outlines which parent will bear the burden of making a case in court. Where parenting time is “substantially equal”, the mover has the onus to prove that the relocation would be in the best interests of the child.
Where the child “spends the vast majority of their time in the care” of the mover, the party opposing the relocation has the burden of proving that the relocation would not be in the child’s best interests.
In all other cases each parent must demonstrate whether the move would be in the best interests of the child.
There is no definition provided in the Act about the definition of ‘substantially equal’ parenting time but it has been suggested that it may not strictly be defined on the same terms of as shared parenting, being that the children are with each parent between 40% and 60% of the time.
The changes to the Divorce Act provide a new framework for mobility cases which will likely be beneficial for parents and decision makers as soon as the Act comes into effect on July 1, 2020. The practicality of the time lines outlined in the Act and the definition of some important terms will, hopefully, be clarified over time. In the interim, if you have questions or concerns about mobility issues or any of the upcoming changes, please feel free to contact us.
