Relocation or “mobility” cases are some of the most difficult to adjudicate in Family Law. As the world has become increasingly globalized in recent years, the number of relocation cases litigated has grown significantly. The difficulty of such cases lends itself, in part, to the fact that the current Divorce Act is devoid of any provisions governing the issue of relocation. The best interests of the child (BIOC) test espoused by the Supreme Court of Canada in Gordon v. Goertz (1996) did little better to provide concrete guidance to Courts tasked with relocation decisions and has been criticized as being far too discretionary and fact specific.
On March 1, 2021, Bills C-78 and 207 will come into force, ushering in a new statutory framework for dealing with relocation cases. The new regime provides mandatory notice provisions for persons wishing to relocate or change the residence of a child; a standardized process for authorizing requests for relocation; a list of additional factors that the Court must consider in a relocation situation (in addition to the BIOC factors in s. 16(3)); a clarification of what factors must not be considered in relocation cases; and finally some direction on who holds the burden of proof in various relocation scenarios. The following is a technical briefing on what you need to know about the new relocation regime.
Relocation versus Change in Place of Residence
As a preliminary matter, both Bills set out a distinction between a “change of residence” on the one hand and a “relocation” on the other. Every relocation is inevitably a change of residence, but every change of residence is not necessarily a relocation. A “relocation” is newly defined in s. 2(1) of the Divorce Act as:
- a change in residence;
- of either a child of the marriage or a person who has parenting time or decision-making responsibility;
- that is likely to have a significant impact on the child’s relationship with a person who has parenting time, decision-making responsibility or “contact” with a child under a contact order [emphasis added].
Mandatory Notice Requirement
Under the new regime, a “change of residence” and a “relocation” differ in significant ways, most notably in the requirements for giving notice.
Before changing their residence or that of a child, anyone with parenting time or decision-making responsibility must give notice to anyone else who has parenting time, decision-making responsibility or contact with the child under a contact order (Divorce Act s. 16.8(1)). This Notice of Change in Residence must be in writing, set out the date in which the change is expected to occur, and specify the new address and any new contact information such as telephone number (Divorce Act s. 16.8(2)).
Before relocating themselves and/or relocating a child, anyone who has parenting time or decision-making responsibility must give at least 60 days notice before the expected date of relocation to anyone else who has parenting time, decision-making responsibility or contact with a child under a contact order (Divorce Act s. 16.9(1)). The Relocation Notice must include all of the information in a Notice of Change in Residence, but notably must also include a proposal of how parenting time, decision making and/or contact will be exercised.
The new regime provides specific exceptions to the notice requirements, including in cases where a person is fleeing family violence and detailed notice, including a new address, would be impractical or unsafe (Divorce Act s. 16.8(3) and 16.9(3)).
When Relocation is Authorized
Section 16.91(1) of the Divorce Act and s. 39.4 of the Children’s Law Reform Act set out a detailed process authorizing relocation after notice is given. A relocation may proceed after the notice period has expired if:
- the relocation is authorized by a Court; or
- there is no formal objection within 30 days of issuance of the Notice and no Court Order otherwise prohibits the move.
A person can object to the Relocation Notice by either a Standard Form papering the objection or by way of a formal Court Application. Any person objecting within 30 days is required to state the reasons for the objection, their views on a proposal for parenting time set out in the Relocation Notice, and any other information set out in the forms (Divorce Act s. 16.91(1)). If a person objects by Standard Form, then the person seeking the relocation would need to bring a Court Application and the issue would be adjudicated. However, if the person objects by way of a Court Application, then the person seeking the relocation would need to respond by way of Answer.
Additional Factors to Consider
In addition to the BIOC factors set out at s. 16.3 of the Divorce Act (see our previous article linked above), s. 16.91(2)(a) through (g) sets out a mandatory list of factors the Court must consider in a relocation situation, including the reason for the relocation, the impact of the relocation on the child, and the reasonableness of the proposal of the person who wants to relocate and the effect on parenting time with the non-moving parent. The new statutory list largely mirrors the relocation case law decided since Gordon v. Goertz.
This explicit list should help to improve the consistency and predictability of outcomes in relocation cases and provide much needed direction to parents and lawyers when preparing relocation proposals.
Factor not to Consider: the Double-Bind Question
Consistent with case law across many provinces, the new s. 16.92(2) codifies that a Court in a relocation case shall not consider whether the parent seeking to relocate would still relocate if the child was not permitted to lawfully relocate with them. Concern has historically been raised that no matter how this difficult question is answered by a parent seeking to relocate, it may be interpreted unfavourably.
Burden of Proof
Last but certainly not least, the new legislative reforms provide clarity on which party has the burden of convincing the Court on a balance of probabilities that a relocation is in a child’s best interests.
If the parties have substantially equal parenting time, it is up to the parent seeking to relocate to prove that the relocation is in the child’s best interests (Divorce Act s. 16.92(1)). This makes sense because a relocation in an equal parenting scenario would likely have a very significant impact on the relationship between a child and the non-moving parent.
Conversely, if a child is with the relocating parent for the vast majority of time, then the burden of proof lies with the parent opposing the relocation (Divorce Act s. 16.92(2)). We predict a rich body of case law is soon to develop on what constitutes “substantially equal parenting time” and a “vast majority of time”.
In cases where ss. 16.92(1) and 16.92(2) do not apply, including cases where there are no formal parenting arrangements set out in a Court Order or separation agreement, both parents must demonstrate why the proposed relocation is (or is not) in the best interests of the child.
The new relocation provisions of the Divorce Act and provincial reforms in the Children’s Law Reform Act provide Courts and family law stakeholders with much needed guidance in an ever growing area of family law. In our new “work from home” climate where separated parents might be more likely to choose to relocate to remote or affordable areas, these welcome relocation provisions have come at a critical time.
