In part one of this series, we discussed the new changes to the Divorce Act which came into force on March 1, 2021. Specifically, we looked at the new language to changes in custody and access (parenting) and family violence.
In part two, we will examine how the new Act deals with situations where a parent wants to relocate with their children from their current residence to another place. This is called relocation.
When one parent wishes to relocate from their current home with the children to another location which would significantly affect the parenting arrangements, the application was known as one of relocation or mobility. The law in this area was extremely unpredictable, costly and tended to promote conflict between parents. The new law addresses these concerns.
The new Divorce Act has a specific definition of “relocation”. It includes a change in the place of residence of the child, or of a parent, and would likely have a “significant impact” on the child’s relationship with the other parent, or with other specified persons.
If a parent is planning to relocate, with or without the children, there is now a mandatory provision requiring each parent, in writing, to advise the other of the planned relocation at least 60 days beforehand. There are certain exceptions. The notice must indicate the date of the relocation, the address/contact information and a proposal for parenting time if the relocation occurs. The other parent or party can object to the relocation.
The new Act also introduces burdens of proof.
These are essentially legal mechanisms that place the onus of proving the best interests of the children on a particular party. For example, if both parents have substantially equal parenting time, the parent who intends to relocate has the burden of proving the relocation is in the best interests of the child.
However, if a parent has the vast majority of parenting time, and wishes to relocate, then the other parent, who is opposing the relocation, has the burden of proving the relocation would not be in the best interests of the child. In any other case, both parties have the burden of proving whether the relocation is in the best interests of the child.
If you need assistance navigating the changes to the Divorce Act or other types of family law issues, please do not hesitate to contact us to see how we may be able to assist you.
-Written by Lonny Balbi, QC