Child Relocation and Moving Away cases are often the most difficult ones that our Canadian Family Law Firm of the Year lawyers handle.
Calgary Child Relocation and Moving Away Tel: 403 444 5503
One of the most difficult decisions a custodial parent (or Family Law Judge/Arbitrator) can make is the decision to move a child to a new home, sometimes far away from their current home and other parent. This decision may be taken for many reasons (school, a new job, a new relationship, etc.) and can take many names (“moving away”, “mobility”, “relocation”, etc.). But whatever the reason or name, the effect is the same – it’s hard, on everyone. As confided by one of our top Arbitrators (if they have to make that decision on behalf of the parents because the parents cannot agree on that decision), they really have to ‘sweat’ that decision.
Vancouver Child Relocation and Moving Away Tel: 604 602 9000
So how (if the parents can’t agree) do Judges and Arbitrator make a child relocation and moving away decision whether such a move can be made? What factors and considerations do they look at to make such a decision? Fortunately, recent changes to the federal Divorce Act provide some direction in making those decisions.
The Legal Test For Child Relocation and Moving Away Tel: 604 602 9000
The old Divorce Act (originally passed in 1985) made no specific reference to custodial parents moving children. Accordingly, (prior to the recent changes to the Divorce Act), the law on this topic was set out over 25 years ago in the 1996 Supreme Court of Canada case of Gordon v. Goertz ([1996]2 SCR 27), which established a (simple?) 2-step test the moving parent had to meet to permit mobility / relocation (see our previous child relocation article), being:
- First, that there has been a material change in circumstances affecting the child (ie. a change in the ‘status quo’ of the parenting arrangement), and;
- Second, that the move is in the best interests of the child (setting out a number of principles and factors to be considered in making this determination), holding (at para. 50):
“In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?”
Simple, right? Perhaps not so much.
The (new) Divorce Act Tel: 604 602 9000
In March 2021 (after a delay in implementation caused by the COVID-19 pandemic), the federal Divorce Act was amended to codify the principles and factors set out in Gordon and subsequent cases by setting out a detailed legislative framework and clear processes to be followed when a custodial parent wishes to move with their child. The (new) Divorce Act now defines a “relocation” as “a change in the place of residence of a child (or parent) that is likely to have a significant impact on the child’s relationship with (the parent or other person)”, and provides some guidance on the issue of mobility / relocation by providing direction in three (3) key areas, being:
- Notice – requiring the moving parent to give clear, specific notice to the non-moving parent of the intended move (Sections 16.8 – 16.9);
- Defining “Best Interests of the Child” – setting out factors and considerations to be taken into account in determining (including specifically regarding an intended move) what is in the “best interests of the child” (Sections 16.92), and;
- Burden of Proof – clarifying which parent has the burden to prove whether the intended move is beneficial (ie. “in the best interest”) for the child or not (Sections 16.93 – 16.94).
Much clearer now, right? Again, perhaps not so much. Fortunately, since 2021, the Courts (both federal and provincial) have had an opportunity to comment on the 2021 amendments to the Divorce Act and, specifically, how the new provisions regard “relocation” affect the common-law as set out in Gordon and subsequent cases. In 2022, in the case of Barendregt v. Grebliunas (2022 SCC 22), the Supreme Court of Canada commented on and provided some further clarity on a number of issues regarding the “relocation” of children, noting specifically regarding the:
- History of Caregiving – under Gordon, there was no starting presumption in favour of the current custodial parent nor a burden of proof on either parent (to prove the preferability of future parenting arrangements). Under the new relocation provisions, the current (ie. “status quo”) parenting arrangement (primary vs. shared) becomes more important, noting “in all cases, the history of caregiving will be relevant (para. 123);
- Reason(s) for Moving – under Gordon, the custodial parent’s reason(s) for moving were not important (unless they were connected to parenting ability). Under the new relocation provisions, these reasons are specifically to be taken into consideration (Section 16.92(1)(a)). However, these should play only a limited role in the relocation analysis, noting: “Ultimately, the moving parent’s reasons for relocating must not deflect from the focus of relocation applications – they must be considered only to the extent they are relevant to the best interests of the child” (para. 130);
- Willingness to Not Move – Gordon did not address the issue of what the moving parent would do if permission to move with the child was not granted. The new relocation provisions prohibit this inquiry (Section 16.92(2)), as asking this question places the parents into a “double-bind”, noting: “a parent can either appear to be putting their own interests ahead of their child, or they risk undermining the strength of their relocation application” by indicating that they would not move without the child (para. 138), and;
- Family Violence – finally, recognition of the devastating physical, psychological, behavioural and emotional effects of family violence (particularly on children) was a major feature of the new Divorce Act (see: New Divorce Act Family Violence – https://macleanfamilylaw.ca/2020/08/22/new-divorce-act-family-violence ) providing a broad definition of family violence (that includes physical, sexual, psychological, sexual and financial abuse), expressly including it as a factor in determining what is in the “best interests of the child” [Section 16(3)(j)], noting (at para.’s 142-147):
“Since Gordon, courts have increasingly recognized that any family violence or abuse may affect a child’s welfare and should be considered in relocation decisions. Courts have been significantly more likely to allow relocation applications where there was a finding of abuse… The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interest analysis … Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases.”
As previously indicated, the recent (2021) amendments to the federal Divorce Act were significant in that they updated and modernized the legislation affecting separating married couples in three (3) important areas, specifically “relocation”, “best interests of the child”, and “domestic (family) violence”. But one of the clear goals of the amendments was to make the legislation more “child-focused”.
So what term(s) should we be using? “Move away” seems to focus on the disadvantage to the access parent. “Mobility” tends to focus on the rights of the custodial parent to move. The term “relocation” focusses the issue on the effect on the child. And why is this important? Because as the Arbitrator who confided that s/he would really have to ‘sweat’ the decision also confided: a relocation decision is really “all about the kids”.
