Child’s Relocation After Separation Or Divorce

Dealing with children after divorce or separation is one of most common issues that separating couples face. This issue gets more complex when either of the spouse is moving or relocating to a different place.

Typically, child’s relocation messes up with scheduled parenting plan which means that the it becomes difficult for the other parent to meet the children. The spouse who is relocating the child is supposed to prove that the child’s relocation is done in best interests of the child. Similarly, if the child’s relocation is opposed by the other parent, then he/she needs to prove how that relocation is not in child’s best interests.

Child’s relocation requires consent of both parents because the previous parenting plan won’t be working anymore. As per section 16.93(1) of the Divorce Act, the onus to prove whether the relocation is in the best interests of the child is on the parent who is planning to relocate the child.

Change In The Location Of A Child Requires Notice

The Divorce Act and Children’s Law Reform Act deal with the relocation or mobility cases. However, it is imperative to note that there lies a difference between change in residence and relocation and is often misconceived by people.

Change In Residence

Changing the residence means that there is no significant difference in the circumstances. The significant difference is subjective in nature and assessed by courts on a case-to-case basis. The parent with whom the child resides is under obligation to communicate it to the other spouse about the expected change in the residence in advance.

The definition of relocation under the Divorce Act is given as “a change that is anticipated to have a significant effect on a child’s connection with someone who has (or is applying for it) parenting time, decision-making responsibility, or communication.

A notice is served to the person who has decision-making responsibility and parenting contact under a court order. Whether the move is a change in child’s residence or a relocation, the other person needs to be informed in both situations.

Relocation means there will be a substantial change, therefore, the notice requirements would differ from that of a residence change. If you are a spouse and intending to relocate with your child, then you need to consider following few things:

• The notice is to be served sixty days prior to the relocation
• The notice of relocation should contain important information regarding the relocation, such as:
• the date of relocation
• the new place where they’ll be relocating
• some relevant recommendations on how the child’s relationship with the other spouse can be maintained if the relocation takes place
• the contact information of the spouse in order to maintain contact with child

However, an exception may be given to the notice requirements if there is danger to child’s safety in delaying the child’s relocation. These exceptions require solid proof where the party wished to proceed without telling the other party.

What Are The Primary Considerations In Relocation/Mobility Cases?

One of the leading cases on child’s relocation is Gordon v. Goertz where an application was brought for relocating a child out of Canada. The Canadian Supreme Court in Gordon v. Goertz critically analyzed the situation and put forth the material test change in the circumstances that needs to be satisfied for relocation.

• the child’s connection with each parent, as well as the present arrangements for child’s responsibility and visitation;
• the desire/wish of increasing the child’s time spent with each parent;
• the child’s perspective;
• Only in extreme circumstances, when it is pertinent to that parent’s capacity to address the requirements of the kid, may the custodial parent’s reason for moving be disclosed; and
• the effects of any probable disruption on the child’s current surrounding, etc.

The cases of relocation are always considered when consent of the other party is also taken. Before filing a relocation request, it is always recommended to build a solid case and list down all the pros and cons on the child’s best interests. However, in cases, where notice requirements are exempted for example; if its family violence then evidence like pictures, videos, or any films must be provided as these can support your claim of potential risks to your child.

Get In Touch With Us!

Need assistance with drafting a relocation request or unsure how to claim the mobility/relocation rights as a valid partner or common-law spouse? Talk to one of our family lawyers at Ayaz Mehdi Professional Corporation for tailored advice.

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