Moving

One change of circumstances that can affect parenting arrangements is when one parent is planning to move to a different location.

Although any move may be the change of circumstances necessary for the court to re-look at parenting arrangements, some moves are considered “relocations”. There are specific rules about relocations. Whether the move is considered a relocation does not depend on things like the distance of the move. A move is considered a relocation if it would significantly impact the child’s relationship with:

• a person who has parenting time or who is applying for parenting time
• a person who has decision-making authority or who is applying for this authority
• a person who has a contact order

If a person who has a court order for parenting time or decision-making authority intends to relocate themselves and/or the child they must give 60 days’ notice to:

• any person who has parenting time
• any person who has decision-making authority
• any person who has contact with the child under a contact order

These notice requirements apply to people who have a custody order made under a family law before it was amended to remove the use of the term custody.

The notice must include:

• the expected date of relocation
• the party’s new address
• contact information for the person and/or child who will be moving
• a proposal about how parenting time, decision-making authority or contact with the child will be exercised

If the application is made under the Divorce Act the Notice of Relocation Form must be used.

The court can modify the notice requirements or order that they do not apply in some situations, including when there is a risk of family violence. The person who does not want to provide the required notice must apply to the court for this type of order. They can do this without notice to the other party.

A person with parenting time or decision-making authority can object to the move by completing an objection within 30 days of receiving the notice. The objection must include:

• a statement that they object to the move
• reasons why they object to the move
• their views on what was proposed for exercising parenting time or decision-making authority or contact with the child

There is a specific form that must be used to object to relocation. If the application is under the Divorce Act this Objection to Relocation Form must be used. If the application is made under The Children's Law Act the required form is Appendix A of The Children's Law Regulations.

The person who does not agree with the relocation can start a court application instead of filing the objection.

If there is no objection or court case within 30 days of the notice, the person can go ahead with the relocation unless there is already a court order prohibiting relocation.

If there is an objection to the relocation the person wanting to relocate must apply to court for permission.

Burden of Proof

If there is an agreement, arbitration award or court order that the parties are complying with and:

• it provides that the child generally spends equal time with both parties, the person who wants to relocate must prove that the relocation is in the best interests of the child.
• it provides that the child spends the vast majority of their time with the party who wants to relocate, the other party must prove that the relocation is not in the best interests of the child.

If the order that is in place is an interim or temporary order, the court can decide not to use these rules about the burden of proof.

Factors Considered

The court must determine if the relocation is in the child’s best interests. The court considers all the same factors that are considered when a parenting order is made. These factors are discussed in the Best Interests of the Child section. In addition to these factors the court must consider:

• reasons for the relocation
• the impact the relocation would have on the child
• the amount of time people with a parenting order or people who are applying for a parenting order spend with the child and how involved they are in the child’s life
• whether the required notice was given
• whether a geographical area where the child will live is provided in an agreement, arbitration award or court order
• whether the proposal for parenting arrangements after the move is reasonable considering, among other things, where the new place is and the cost of travel
• whether the parties have lived up to their legal obligations and how likely it is that they will do so in the future. These could be obligations based on family law, an order, an arbitration award or an agreement.

For moves that are not considered relocations there are still notice requirements. Anyone who has parenting time or decision–making authority must notify any other people with parenting time, decision–making authority or a contact order that they intend to move themselves or the child. The notice must be in writing and must include:

• the expected date of the move
• the new address and updated contact information for those who have moved

If an application is being made under the Divorce Act the notice to a person with a contact order is provided using this form.

The court can change these requirements or exempt someone from them in some situations, including if there is a risk of family violence.