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Mobility or relocation is an issue that commonly arises for clients. The client may want to move for an employment opportunity, a new relationship, etc. So what are your rights and responsibility’s with respect to the issue of mobility when you have a child?

The rules regarding to a parent’s rights related to mobility or relocation have changed due to recent amendments to the Divorce Act that occurred in March 2021. These changes dramatically impact divorced parents and parents that are in the process of getting a divorce. Sections of our provincial legislation, such as the Children’s Law Reform Act, have also been amended to align with many of the changes made to the Divorce Act but the issue of relocation has not been specifically addressed at this time. In addition to the significant changes made to language used, now we use the terminology of “parent decisions-making responsibility” (formerly referred to as “custody”) and “parenting-time” (formerly referred to as “access”), new obligations have been mandated for parents contemplating a move, if an Order exists dealing with parenting responsibilities for your child.

Note that the changes to the Divorce Act and rules related to relocation only apply to families who fall under the Divorce Act  If parents were never married or if the are not pursuing or have not pursed a divorce in their separation then the provincial family legislation applies.

Can a child be relocated without the other parent’s permission?

If the proposed move has little impact on the other parent, for example you are moving within the same city and there is no change to the child’s child care arrangements or their school, then the move is unlikely to be an issue because such a move is unlikely to impact the other parent’s time with the child or their rights to make decisions on behalf of the child. But if you are considering moving with the child to another province or a move to a distant city then this is categorized as a “relocation”, as defined in section 2 of the Divorce Act. With a relocation you can anticipate that there may be a question as to whether you will be entitled to relocate with the child. 

The first question to ask is whether the move will impact the other parent and their relationship with the child. If the other parent does not have parenting responsibilities (parenting-time or decision-making responsibilities) for the child set out in a Court Order or Agreement, then it is likely you can move without obtaining their permission.

Parental mobility rights under the Divorce Act

If you have a Court Order that grants the other parent parenting responsibilities (parenting-time or decision-making responsibility) for the child, then you must get their permission to move with the child. If they do not permit the move, then you will have to seek a Court Order permitting you and the child to move. 

If you have an Agreement (Parenting Agreement or Separation Agreement) you must follow the terms set out in that Agreement that deal with mobility. 

If there is no Agreement in place and the other parent has no parenting-time or parenting decision making responsibility, then there is no obligation to seek the other parent’s approval for your move.

For separating or divorced parents, effective March 2021 there is a required form called a Notice of Relocation, that must be completed by the parent wanting to relocate with the child and then the completed form must be provided to the other parent. There are excellent instructions provided on the Notice of Relocation form which will assist parents in completing the form. See the Government of Canada Department of Justice form at Notice of Relocation Form (justice.gc.ca).

Also see https://www.justice.gc.ca/eng/fl-df/fact5-fiches5.html for helpful information.

Who is entitled to notice of your proposed move?

Under the Divorce Act, the other parent who has parenting-time and parent decision-making responsibilities for the child and also any person who is entitled to contact with the child under a Contact Order, such as a grandparent, etc. The Notice of Relocation form must be competed and provided to the other person at least 60 days in advance of the proposed move. The parent wanting to relocate is now obligated to provide key information related to the proposed move to the other parent, in the form, including the date of the proposed move, the new address/contact information and also a proposal to change the parenting arrangements. 

The other parent may object to the proposed relocation by doing so in writing (Objection to Relocation form) which puts the parent wanting to move on notice that the other parent objects to the proposed move, or the other parent may provide “notice” of their objection by applying directly to Court. The objection must be made within 30 days of receiving the Notice of Relocation.   

In situations where there is a Contact Order in place, the parent wanting to relocate will complete the Notice of Change in Place of Residence form. A person who has time with the child under a Contact Order, for example a grandparent, is entitled to notice of the move but the legislation does not provide that person with the right to formally object.

What happens if the other parent disagrees with the relocation?

If you receive notice of the other parent’s objection to the relocation, you are not entitled to move, until the matter is dealt with in Court or the parents resolve the dispute, which may occur in mediation, negotiation by their counsel, etc.

Of course in situations of abuse where you fear for your child’s or your own safety, you can apply to the Court, without notice to the other parent and seek a change to the notice rules. For an exception to the notice rules to be granted there will have to be clear evidence of abuse/violence in the form of police reports, photos, etc.

A focus on the child’s best interests

These changes to the legislation related to mobility and relocation provide significant responsibilities on parents who have Orders under the Divorce Act. The clear focus of these changes to the legislation is firmly on the child and the child’s best interests.

If you require assistance in navigating the new rules on mobility and relocation with your child(ren), please do not hesitate to contact Andera Cooley for a consultation. Andrea can be reached at [email protected] or by phone at 519-660-7782 and she can assist with this issue and all other family law issues related to separation, divorce, etc.

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