Relocation with Children
Introduction
How we perceive our quality of life, cost of living and work has evolved in recent years. COVID-19 brought about new patterns in the movement of Canadians. More Canadians are grappling with the rising cost of living and expensive housing markets. Hybrid and remote work models have given rise to new possibilities for working in one location and simultaneously living elsewhere.
However, with children and parenting agreements, the question of relocation can be complex and requires significant thought and consideration.
What is the existing legal framework for relocation cases?
Gordon v Goertz was the first major case on relocation. The court considered whether a mother with custody of her daughter could move from Saskatoon to Australia for the mother to pursue the study of orthodontics. The father applied to court for custody of the child, and in the alternative, an order preventing the move out of Saskatoon.
The Gordon v Goertz two-step framework/test
Firstly, the parent seeking a change in the parenting order had to meet a threshold test that there had been a “material change circumstances” affecting the child. There were three factors, all of which had to be fulfilled:-
- there must be a change in the condition, means, needs, or circumstances of the child, or the ability of the parents to meet the needs of the child;
- this change must materially affect the child; and
- this change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
If the threshold is met, the judge will then embark on a fresh inquiry into the best interests of the child.
There was no legal presumption in favour of either parent. Once the applicant had discharged the burden of showing a material change in circumstances, both parents bore the evidentiary burden of showing where the best interests of the child lay. The factors considered include:
- the existing custody arrangement and relationship between the child and the custodial parent
- the existing custody arrangement and relationship between the child and the custodial parent
- the desirability of maximizing contact between the child and both parents;
- the views of the child;
- the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
- disruption to the child of a change in custody; and
- disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
The court held that while the “maximum contact” principle was mandatory, it was not absolute, and a judge was obliged to respect it only insofar as such contact was consistent with the child’s best interests.
A majority of the court agreed that the mother should be allowed to move to Australia, with access for the father in Canada, which the court opined would be “more natural” (at [54]).
This framework was further refined by Barendregt v. Grebliunas, 2022 SCC 22, which considered the following factors in its decision:
- History of Caregiving: depending on whether there was one primary caregiver or shared parenting, the burden of proof of showing that relocation was in the best interests of the child would necessarily shift. In the time of Gordon, there was no statutory burden of proof for relocation on either party.
In 2019, changes were made to the Divorce Act to clearly outline the burdens of proof. Where there is shared parenting, the burden of proof is on the relocating parent to demonstrate that relocation is in the best interests of the child. Where a parent with majority of the caregiving time and responsibility seeks to relocate, the burden of proof lies on the other parent to show that relocation should not occur. Therefore, the history of caregiving was an important factor.
- Reasons for Relocation: the reasons for relocation were crucial only insofar as they were related to the child’s best interests
- Maximum Contact (now “Parenting Time Factor”): maximising contact was, again, only crucial insofar as it was in the child’s best interests
- Family Violence: any issue of family violence impacted the child and was therefore an important factor in determining relocation
Whether the parent would relocate or not depending on the outcome – an issue that was raised in Gordon – was found to be not relevant.
New Developments – Provisions for Notice of Relocation/Change in Residence
In 2021, changes were made to the Divorce Act. The Moving Ontario Family Law Forward Act, which amended the Children’s Law Reform Act and Family Law Act, was passed. This added provisions for notice of relocation and change in residence.
The Acts now provide that relocation requires 60 days’ notice and that an objection may be made by the other parent within 30 days of said notice. If no objection is received within 30 days, or the moving parent has a court order permitting relocation, the moving parent may relocate.
The Acts do not stipulate a notice period for change in residence. This may have readers wondering about the distinction between relocation and change in residence. This has been defined in the respective Acts: briefly, a relocation is a change in residence that may have a “significant impact” on the child’s relationship with the other parent.
A 2023 case considered this question where no notice was given of a move to the other parent. Somji J. reiterated at [96] “…“relocation” is defined as a move that has a significant impact on the child’s relationship with the other parent and requires 60 days’ notice whereas a “change in residence” is considered a move that is not significant. While a change in residence does not require 60 days’ notice, it requires nonetheless some “advanced” notice in writing.”
What do I do if I want to move to a different province or country with my child?
If you intend to make changes to your parenting agreement, it is always ideal to obtain legal advice before doing so.
Are both parents spending significant time with the child such that you are in a shared parenting arrangement, or is the child’s primary residence with you? This would affect the burden of proving whether a relocation is justified or not.
Is the change within the same town or near enough such that it would not affect the other party’s existing parenting time, or require excessive travel? You may be looking at a change in residence that requires some advance notice to the other parent.
Is it a move to another province or country for work? Would such a move be in the child’s best interests, keeping in mind the factors used by the court? How would the other parent’s parenting time be affected and what alternatives can be offered to the other parent? A lawyer can help you work through these issues.
Predictability, effective communication, and sufficient notice are hallmarks of good co-parenting. These factors become more critical when considering relocation. It would be ideal to vary your parenting agreement or court order by consent, and at Nazarian Law, we can assist in negotiating this for you.
How a court may treat a relocation situation is based on many factors and the outcome may vary depending on the unique circumstances of your case. We would be happy to advise you on possible outcomes.
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Disclaimer
The content provided in this article or blog is for informational purposes only. It is not intended to constitute legal advice or to replace the advice of a qualified legal professional. While we strive to provide accurate and current information, the law is complex and constantly changing, and each person’s circumstances are unique. Therefore, you should not rely on this information as a substitute for professional legal advice. This information does not create an attorney-client relationship between you and our law firm. We strongly recommend that you consult with a qualified attorney in your jurisdiction to understand your legal rights and obligations. Always seek legal advice before making any decisions that may impact your legal rights or obligations.
