During Covid-19, the issue of relocation of children has become a highly contested issue between parents due to social and economic challenges brought on by the pandemic. Many have lost their jobs while others have secured jobs in cities where they need to move. In many situations like these, some parents have reported moving to another city or province without seeking other parents’ consent or a court order, inviting urgent motions in the court. In this article, I will discuss the factors that the courts considered in the past while granting relocation. I will also discuss the recent amendments in the Divorce Act regarding relocation.
Factors the Courts Used to Consider Before Amendments in Divorce Act
The Supreme Court of Canada, in Gordon v. Goertz, decided that a custodial parent cannot move the children anywhere without seeking another parent’s consent. The Supreme Court has determined a threshold requirement of demonstrating a material change in the circumstances affecting the child, which is given in the following:
- A change in the condition, means needs or circumstances of the child or in the ability of the parents to meet the needs of the child;
- which materially affects the child; and,
- which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
If the above threshold is met, the judge will embark on a fresh inquiry into the child’s best interests, regarding all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. Please note, the focus of the inquiry is not the interests and rights of the parents.
Recent Amendments in the Divorce Act Authorizing Relocation
Section 16.91 of the Divorce Act, authorizes the relocation in the following way:
- A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if
(a) the relocation is authorized by a court; or
(b) the following conditions are satisfied:
(i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection.
How Can the Other Parent Object?
A person with a parenting order can object in two ways, either by way of a standard form prescribed by the regulations or by bringing a court application.
What Are the Factors the Court Will Consider to Grant Relocation?
Section 16.92 (1) of the Divorce Act provides that, “In deciding whether to authorize the relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.”
Who Has the Burden of Proof?
Section 16.93 of the Divorce Act provides that the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. If the other party is objecting to the relocation, that party has the burden of proving that the relocation would not be in the best interests of the child.
Conclusion
Before these amendments in Divorce Act, the focus was on the best interests of the child, not the interests and rights of the parents. However, the Recent amendments to Divorce Act have overruled the decision given in Gordon v. Goertz. Earlier the reasons for relocation were not to be considered as per Gordon. But it is evident from the facts of different cases that reasons for the relocation of a parent, sometimes, can relate directly to the best interests of the child. For instance, relocation of one parent might improve the standard of living of the child, financially, academically, and socially. Since Divorce Act, now, provides an explicit list of factors that the court must consider, I believe these factors will be helpful in providing guidance to the parents in general and especially to the members of the bench and bar.
Nasar Iqbal
Barrister & Solicitor