Carm’s Corner (Blogs)2020-09-02T10:24:28-05:00

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“If You Leave, Don’t Leave Now … We Still Gotta Talk About the Kids!” Relocation after Divorce Act Proceedings

With apologies in advance to the 1980’s band OMD, I decided to borrow the opening line from the soundtrack to the hit movie from 1986 “Pretty in Pink” to introduce the topic to this month’s blog – Relocation.  

It is quite common in today’s society that, following the end of a relationship, one or both of the parties will decide to enter into a new relationship or pursue a new career opportunity, that will require them to move away from the city in which they were living at the time the court makes a divorce order.  If there are no children involved, I doubt either of the divorced parties will shed a tear for the departure of their former flame, but if there are children involved, and the current provisions for decision-making and parenting time will be affected. You can expect one of the former spouses to belt out their own version of the opening lyrics to “If You Leave” (likely with a few curse words added in there). This blog will focus on the concept of relocation, when it is triggered, who gets notice of the relocation, in what manner/format, how to settle the dispute out of court, and how it is likely to be settled in court if a judge is asked to decide for the parties.

Is it a Move, or is it a Relocation?

At the outset, let me say that not all moves will be considered a “relocation.” The key issue is whether a move by one former spouse will affect the other former spouse’s parenting responsibilities, or their relationship with the child or children, as a result of that move. One of the parties will be deemed “relocating” if their intended move from where they currently reside will result in the current order for parenting time (formerly access) to no longer be practical. 

As an example, I reside in Hamilton, Ontario. The city is commonly split into two main areas – the downtown and the “mountain” (the upper escarpment). If one party moves from the top of the mountain to the bottom, or vice-versa, that is a move that would not impact the quality of the other party’s parenting time with the child. Maybe a slight inconvenience by 15-20 minutes, but it is not a relocation.

But what about a case where one party has met a new partner online and wishes to move from Hamilton to Toronto? Or to Ottawa? Or to Edmonton? Or to Texas? Generally speaking, anything that would impact the drive to/from the parent’s home of more than 45 minutes to 1 hour could be considered a relocation. The longer the distance and the greater the time between the two homes, the more likely it will be considered a relocation.

In many agreements and court orders, lawyers and judges will have a clause that says a change of address of more than 20, 25, or 30 km from the current address, or from the current city boundaries, as a definition of what would constitute a relocation of the party.

When to Give Notice of a Move/Relocation, and What Should that Notice Look Like?

The recent changes to the Divorce Act have validated a longstanding policy that many in the legal community have used to establish the notice provisions regarding moving/relocation. If one party is planning on changing their current address, then there are two sets of rules:

  1. If it is simply a move and not a relocation, then the moving party must let the remaining party know:
  • the date of the move 
  • the moving party’s new address
  • the moving party’s new contact information
  1. If it is not simply a move, but it is a relocation, then the relocating party must let the remaining party know:
  • at least 60 days in advance about the move
  • provide specific details about the move 

Prior to the Divorce Act changes, most parties would just email the other side the details or tell the other side at an exchange visit. That does not cut it anymore.  Now, the relocating party must use a “Notice of Relocation.” This form requires the relocating party to advise the remaining party of the following information:

  • when the move will take place
  • the relocating party’s new address
  • the relocating party’s contact information
  • the relocating party’s ideas on how the parenting/contact schedule could be changed to help support the child’s or children’s relationships with the remaining party if the relocation were to take place

A copy of the “Notice of Relocation” form can be obtained from the Canadian Department of Justice website. 

What Happens Next? What if the Parties Cannot Agree?

In most cases, the parties will work out the details of the relocation and how the current order/agreement has to be re-worded to reflect the impending reality. They can do so on their own, with the help of mediators, lawyers, or other professionals.

However, there are cases when the parties cannot agree on the terms or on whether the relocation should take place. This is a time for both parties to seek legal advice on how to address the situation, as the child or children cannot remain forever in limbo while the parents try to work this out.

If you are the party who will be remaining, and if you do not agree or cannot agree with the other party’s plan to relocate your child or children, you have to object to the relocation within 30 days of receiving the notice to relocate. 

There are two ways that a remaining party can object to the relocation:

  1. apply to the court to stop the relocation; or,
  2. serve the relocating party with an “Objection to Relocation” form, which will explain to them why you are objecting to the relocation

The “Objection to Relocation” form requires the remaining party to advise the relocating party of the following information:

  • that they object to the relocation
  • why they object
  • their views on the proposal for parenting time, contact, and decision-making responsibility

Once the remaining party objects, the relocation cannot take place until a judge decides that it is in the child’s or children’s best interests to do so. Concurrently, once the relocating party receives the “Objection to Relocation” form or a court application opposing the relocation, they cannot relocate the child or children until the court makes an order allowing for the same.

Once again, a copy of the “Objection to Relocation” form can be obtained from the Canadian Department of Justice website. 

Going to Court to Decide the Issue of Relocation

If the parties go to court to have a judge decide this issue, rest assured that the recent changes to the Divorce Act will guide a judge as to what to consider when reaching a decision. The over-arching test is “what is in the best interests of the child or children?” Another important consideration is whether there has been or there still is domestic violence between the parties or between the parties and the children? 

To help a judge reach a proper decision, there are several factors that the court will consider, with each one being a factor, and not necessarily the factor:

  • Why is the relocating party looking to relocate? Is it for a good reason? Is it to make things harder for the remaining party? Has this been planned or expected for a while? Is it on a whim? 
  • What will the impact of the relocation be on the child/children? Are they leaving everyone they know behind? Are they going somewhere with their existing family in the new place? How long have they lived where they are? Will they lose life-long friendships and school ties?
  • What is the parenting time and involvement of each parent? Does the parties enjoy shared parenting? Does the remaining party have parenting regularly? Does the remaining parent have parenting time sporadically by choice? 
  • Did the relocating party give proper notice per the new rules? When was notice given? In what form? What efforts were made to accommodate the remaining party? 
  • What does the court order, separation agreement, or arbitration award say? When was it entered into or made? What does it say regarding where the child or children should live? 
  • Is the proposed change in the parenting arrangement reasonable? Where is the child’s new home going to be? How will the relocation impact the remaining party? Can they easily pick up and see the child/children, or can the child/children easily come and visit the remaining party? How much more will it cost them to do so? (Consideration can be given to offset future travel costs against future child support obligations)
  • Have the parties complied with (or been complying with) their court orders, agreements, and arbitration awards? Has the relocating party thwarted the remaining party’s parenting time in the past? Is this a pattern of ignoring court orders? Has the remaining party been enjoying their parenting time? Do they regularly cancel visits? Does the remaining party make their regular child support payments? Is the remaining party in arrears of child support? 

Who has to Prove What? The Relocating Party or the Remaining Party? 

If there is a court order, agreement, or arbitration award in place, then the answer is “it depends.” What exactly does it depend upon? The existing parenting time. 

If the parents basically have equal parenting time with the child/children, the relocating party must prove that “it is more likely than not” that the relocation is in the child’s best interests. 

Suppose the parents have unequal parenting time with the child/children, with the relocating party having significantly more time with the children. In that case, the remaining party must prove that “it is more likely than not” that the relocation would not be in the child’s best interests.

Conclusion

As you can see, a relocation scenario raises more questions than it does provide clear answers to the parties.  Until the proposed change in residence, the parties have had time on their side, but time will fade fast once the proper notice is given. Now it is up to both parties to savour every second, every moment, to make it last. Let’s hope they can do so without making a stranger (a judge) decide what’s best for their child/children. 

Remember, every case is unique, just like you are. If you are facing real legal problems, you need the right legal solutions. Please contact Runco Law at 289-799-3080 or email me at carm@runcolaw.ca. 

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