The best divorce child relocation lawyers at MacLean Law successfully help clients deal with applying for child move away cases or opposing these emotionally draining child relocation and mobility cases. The new Divorce Act has new rules for mobility and child relocation.
In today’s blog Brianne Beckie explains the new rules that apply across Canada to married couples who separate.
Our lawyers have helped set the law on child custody and parenting time in Canada including the famous “maximum contact” case of Young v Young in the Supreme Court of Canada won by Lorne MacLean, QC. We have offices across BC, in Calgary and in Toronto.
Best Divorce Child Relocation Lawyers 1 877 602 9900
Child relocation, also known as mobility in BC and Alberta, is a relatively common issue in family law. MacLean Law’s Best Divorce Child Relocation Lawyers are often retained to assist clients in obtaining a resolution in such matters. There are a number of reasons why a parent might want or need to relocate, such as employment opportunities in another city, province or country, or to be closer to family members for emotional support.
What constitutes a relocation? Child relocation occurs when one parent moves out of the jurisdiction in which the parents currently live such that the current parenting schedule will no longer work. For example, if one parent simply moves elsewhere within Vancouver Toronto or Calgary, it is unlikely that significant changes to the parenting regime will be required. In the alternative, if one parent intends to move from Calgary to Victoria or Vancouver to Toronto, it is likely that the parent will need to bring a mobility application if there is no agreement between the parents.
The Divorce Act (Canada): Best Interests of the Child 1 877 602 9900
The Best Divorce Child Relocation Lawyers know that the legal test for child relocation is the best interests of the child. The changes to the Divorce Act, RSC, 1985, c 3 (2nd Supp), which came into effect on March 1, 2021, includes a framework for child relocation matters. The Divorce Act now provides a number of factors to be applied in determining the best interests of a child in regards to a proposed relocation. In deciding whether to authorize the relocation of a child of the marriage, the court must consider the following factors to determine what is in the best interests of the child:
- the reasons for the relocation;
- the impact of the relocation on the child;
- 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;
- whether the person who intends to relocate the child complied with any applicable notice requirements;
- the existence of a court order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
- the reasonableness of the proposal made by the person intending to relocate the child in respect of parenting time, decision-making responsibility or contact; and
- 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.
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Our Best Divorce Child Relocation Lawyers also understand that these factors are to be considered in tandem with the factors enumerated in section 16 of the Divorce Act. The court cannot consider whether or not the parent would relocate without the child if their application was denied by the court.
Best Divorce Child Relocation Lawyers explain that the Divorce Act only applies to couples who are still legally married (and separated) or who were married and are now divorced. As such, the Divorce Act does not apply to unmarried parents; however, the court may still consider the child mobilty factors above when deciding a divorce child relocation matter. The Divorce Act and BC has detailed relocation rules but unfortunately, the Family Law Act of Alberta does not contain specific provisions related to mobility. It does, however, provide a list of factors related to a child’s best interests as it relates to parenting orders generally at section 18.
Burden of Proof: If the parents substantially comply with a parenting order, arbitral award or agreement such that the child spends equal time in the care of each parent, then the parent who intends to relocate with the child bears the burden of proving that the relocation is in the child’s best interests. Alternatively, if the parents substantially comply with a parenting order, arbitral award or agreement such that the child spends most of the time in the care of the parent who intends to relocate the child, the parent objecting to the relocation bears the burden of proving that the relocation is not in the child’s best interests. In all other cases, the parties bear the burden of proving whether the relocation is in the child’s best interests (Divorce Act, ss 16.93 (1)-(3)).
Notice Provisions
If you have a court order for parenting time under the Divorce Act, you will need to give notice of your intention to relocate with or without the child. Even if a parent does not intend to relocate with the child, the other parent must know where the child resides for pickups and drop-offs. This blog focuses on a relocation with the child.
The parent who intends to relocate must give notice to the other parent (or any other person who has parenting time, decision-making responsibility or contact) 60 days before the proposed relocation. The notice should be in the form prescribed in the regulations (Form 1 – Notice of Relocation). The other parent (or any other person who has parenting time or decision-making responsibility) can then object to the relocation (Form 2 – Notice of Objection to Relocation). If the other parent does not object within 30 days, the parent can relocate with the child on the date proposed in the notice unless there is a court order prohibiting a relocation. Only a person who has parenting time or decision-making responsibility with respect of a child of the marriage can object to a relocation.
Calgary Best Divorce Child Relocation Lawyers 1 877 602 9900
Exception
Upon application, a court may dispense with the child mobility notice provisions if there is a risk of family violence (Divorce Act, s 16.8(3)). Such an application may be brought without notice to the other parent. As defined by the Divorce Act, family violence means any conduct by a family member towards another family member that is violent, threatening, controlling or that causes that other family member to fear for their own safety or the safety of another person (e.g., a child). For the complete definition, please consult the Divorce Act at section 2(1).
Illustration – Case Law: MacDonald v Padelt-Robinson, 2021 NSSC 258
Derek MacDonald and Ashley Padelt-Robinson married in July 2014 and separated in December 2017. They have three daughters. The children reside primarily with Ashley, but both parents have been very much involved in their daughters’ lives. Derek applied for an increase in his parenting time to which Ashley responded by filing a cross-application to relocate the three children in September 2021 to a different city in Nova Scotia, about an hour and a half away (by car) from where they currently reside. Ashley wishes to attend a two-year education course in Sydney, Nova Scotia. Derek is opposed to the relocation. The paternal grandparents, with whom Derek resides, are also heavily involved in the lives of the children. The maternal grandparents do not have frequent contact with the children.
The Nova Scotia Supreme Court held in favour of Derek who opposed child mobility, such that Ashley’s cross-application to relocate the children was denied. The Court placed significant emphasis on stability for the children. It was found that the children had a stable life in their current place of residence. They were well adjusted to their current school and greater community. They were also near their paternal grandparents who are a stable and loving influence in the lives of the children. The Court also determined that Ashley’s plan to relocate was not well thought out and was based on her own desires rather than creating a better life for the children. Lastly, the evidence shows that Ashley did not need to relocate to attend the educational program.
Settlement Options On Child Mobility
Before going to court, parents should first attempt to resolve their relocation and child mobility dispute outside of court. MacLean Law Child Relocation Lawyer, Brianne Beckie, of our Calgary office has successfully resolved child relocation disputes in mediation and lawyer-assisted negotiation. While it may appear as though there is no “middle ground” to resolve these disputes, here are some suggestions:
- The parent who initially objected to the relocation may agree to follow the parent who proposed the relocation if the relocating parent agrees to allow the other parent time to find accommodations at the proposed location before the relocation occurs (e.g., six months). Of course, this may not work for some parents if they are unable to relocate at all due to employment or other reasons.
- The objecting parent may agree to the other parent’s relocation with the child if the relocating parent agrees to a reasonable and generous parenting time schedule that allows the non-relocating parent to spend quality parenting time with the child on a regular basis. The new parenting schedule will depend on the distance between the two locations.
- The non-relocating parent may also be given financial concessions to compensate him/her for the increased costs (e.g., travel costs) to exercise their parenting time. While parents cannot waive child support (as it is the right of the child), the court may accept an agreement to depart from the Federal Child Support Guidelines (married or divorced spouses) or the Alberta Child Support Guidelines (adult interdependent partners who never married) as the case may be.
Conclusion
It is important to obtain legal advice, as each family’s situation is different. If you are thinking about moving, and child mobility with or without your child(ren), contact MacLean Law’s best divorce child relocation lawyers today for a consultation.
