• Sarah Peel

Divorce & Moving With Children – What Are My Rights?

By: Sarah Peel, Associate Lawyer

Following a family breakdown, it is common for parties to relocate, but this is often not so simple as deciding to move and booking a U-Haul. A parent can have many reasons for wanting to move – they may wish to be closer to extended family supports or have a new job opportunity. Regardless of the reason, a parent cannot simply move without providing notice and opportunity for objection to others in the child’s life. This is to protect any parenting arrangements or contact orders that may be in place and ensure the child continues to maintain important relationships in their life.

The new Divorce Act includes a whole framework to assist parents throughout this process - whether they are considering a move with or without their child. Ideally, these rules will help parents come to an agreement when considering relocation and avoid the time and cost of going to court.

Each situation will be different – and not every move is considered a “relocation” under the new Act. It is important to look at each situation and the impact on the child. For example, if there will be a considerable impact on the parenting schedule, even a move across town could be considered a “relocation”. However, if the parties live far apart and a move to a closer neighbourhood actually makes the parenting schedule easier, it may not be considered a “relocation”.

It is important to note that while not all moves are considered “relocation,” as defined in the Act, there are notice requirements for all changes of address. Factors defining what constitutes “relocation” include what impact, if any, the move will have upon the parties’ parenting schedule and whether the move will affect the child’s relationships.

Where a move is not a “relocation”, the notice must contain:

  • the date you are moving

  • your new address

  • your new contact information

When a move is a “relocation”, you must provide notice in the prescribed form (available on the Department of Justice website) at least 60 days in advance.

The new Divorce Act also contains specific rules to protect persons involved in situations of domestic violence. For example, if you feel notifying the other party would put you or your child’s safety at risk, you can apply to the court without providing notice to the other party. The court will, however, require evidence of family violence to support your request.

If you do not agree with a plan to relocate your child, you have 30 days to file an objection. There are two ways to do so:

  • By submitting the Objection to Relocation Form (form available on the Department of Justice website); or

  • You can apply to the court to stop the relocation.

Whichever method you choose, once a parent objects to the move, the relocation cannot take place until there is an order.

Note, you cannot object to the other parent’s plan to move if it does not involve the relocation of your child.

Where the parties share roughly equal time, the person planning to relocate with the child must prove it is more likely than not that the move is in the best interests of the child.

Where the party planning to move has the majority of the parenting time with the child, then the other parent must prove it is more likely than not that the move would not be in the best interests of the child.

A judge will ultimately make a decision based on the best interests of the child considering all of the regular best interests factors as well as several factors specific to relocation cases, such as the reason for the relocation, the impact of the relocation on the child, and the parenting time and involvement each parent has with the child.

DISCLAIMER: The publications on this website are intended to provide information of a general nature and not legal advice. The information contained in this publication is current to the date of the publication and may be subject to change following the publication date.

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