Canada’s Divorce Act amendments, Part 2: Mobility in Custody & Access cases

Written by Kady McCourt, Family Lawyer

One of the most challenging family law issues that arises is when one parent wishes to relocate to a new jurisdiction with a child.  Oftentimes, a relocation will impact the quality time available for the child to spend with the parent who remains in the home jurisdiction.  Further, a move can reduce the ability of the non-moving parent to remain involved with the children’s school, health professionals and extra-curricular activities.

Until the amendments to the Divorce Act come into effect, there is no applicable legislation which specifies how relocation cases should be dealt with by the court. Instead the court is directed to the factors identified in the Supreme Court of Canada’s decision in Gordon v. Goertz, a case where the Supreme Court had to consider a request by a custodial parent to relocate with her child from Saskatchewan to Australia. In Goertz, the Mother was granted permission to relocate with the child.

Once the Divorce Act amendments come into effect the mechanism by which a person may apply to relocate with their child will follow a specific process if the case is determined under the Divorce Act. In those cases where the Divorce Act does not apply, the process will remain unchanged for now.

The New Procedure:

The following is the new procedure to be followed in cases under the Divorce Act, where one parent wishes to relocate:

(1) The parent who wishes to relocate is required to provide written notice to a party who has parenting time or contact with a child.  The written notice must be provided at least 60 days before the proposed move, and must contain the following information:

(a) The expected date of the relocation;

(b) Address and contact information for the new location;

(c) A proposal with respect to how parenting time, decision making responsibility or contact could be exercised following the relocation.

(2) Once the above notice has been provided, the move may occur in two scenarios:

(a) The court authorizes the move; or,

(b) The person who received the notice does not object within 30 days of receiving the notice, and there is no court order prohibiting the move.

(3) If the non-moving party objects to the relocation, the court would then consider a specific list of factors in assessing whether the move would be in the child’s best interests.

It is of note that where there is a risk of family violence, a parent may be exempt from the notice requirements above. 

It remains to be seen if the implementation of the new legislation around mobility will simplify these cases, or if the result will be more protracted and complex family litigation.  Whether the Divorce Act amendments apply to your case or not, it is always important to obtain legal advice from an experienced family lawyer if you intend to relocate with a child to whom another parent has access, whether that access is through Court Order, Separation Agreement or informal agreement.

Kady McCourt and Greg Kay are both family lawyers with experience representing clients in mobility cases.  Contact Kay & McCourt at (905) 372-1994 if you require assistance with a mobility case or any family law issue.

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