Relocating with children: What are the changes to the Divorce Act and Children’s Law Reform Act?

July 12, 2022

It’s not uncommon for a woman to want to move after she has left a relationship in which she was being abused. Both the Divorce Act and the Children’s Law Reform Act (CLRA) govern what steps have to be taken in this situation, and those provisions have changed as a result of the recent reforms to both statutes.

Why a woman might want, or need to move

Of course, women have very personal reasons for wanting to move after separating from their partner, but there are some fairly common themes.

The need to move may be employment related: she may have a job offer in another community but no prospects of employment where she lives now, she may have been transferred by her employer or have lost her job.

If she has entered a new relationship with someone who lives in another part of the province or country, she may want to move to continue that relationship.

Perhaps her parents are ageing and she wants or needs to live closer to them to assist them. Most importantly, a woman who has left an abusive partner may need to move for safety reasons or to be closer to support from her extended family.

What the law requires

The Divorce Act and the CLRA govern the movement of children and contain very specific provisions about what parents need to do if they want to move, with or without their children. The legal requirements vary depending on a number of factors: the impact the move will have on the children’s time with their other parent, how much time that parent spends with the children, the ages of the children, how close they are to the other parent and the reasons for the move.

The legislation defines moving with children as being one of two things:

A change of residence, which is a move that will not have a major impact on the child’s relationship with the other parent. Most often, this would be a move within the same city or geographic area.

A relocation, which is a move that will require a significant change to the existing parenting schedule. This is generally a move of some distance: perhaps to another part of the province, another province or even another country. In some cases, it could be a move within a large city, if the children are very young, transportation is a challenge and the existing parenting schedule gives both parents frequent parenting time.

Let’s look at the steps in the process, beginning with the notice requirements for the parent wishing to move.

If a mother has parental responsibility for her children and wants to move without them, she must still give notice to the other parent (and anyone else who has a contact order allowing them to spend time with the children) to let them know when she is moving, her new address and any other updated contact information. She does not need consent from the other parent to move, but is responsible for any minor adjustments to the parenting schedule that would be required.

If the mother wishes to move with the children, and the move is a change of residence that will not have a significant impact on the children’s relationship with their other parent, the required notice is straightforward.

Section 39.1 of the CLRA and section 16.8 of the Divorce Act require the parent seeking to move with the children to let the other parent know, before the move takes place, when the move is happening, what the family’s new address will be and any other new contact information.

Because this move will not affect the other parent’s time with the children, their consent is not required to allow the mother and children to move.

However, if the move will mean some modifications to the parenting schedule, the mother will be well advised to suggest changes that will minimize inconvenience for both the children and the other parent.

If the mother wishes to move with the children, and the move is a relocation, the notice requirements are more onerous because the move will have an impact on the parenting schedule.

As set out in section 16.9 of the Divorce Act and section 39.3 of the CLRA, the mother must complete the required notice form and serve it on her former partner at least 60 days before the planned move.

If the former partner agrees or does not object, the mother and children can move on the date set out in the Notice of Relocation Form.

If the former partner does not agree, they can formally object within 30 days of receiving the notice by completing an Objection to Relocation form or by applying to the court to stop the relocation. They must set out why they object to the move as well as any objections to the mother’s proposed new parenting arrangement. You can access the forms needed under both the Divorce Act and the CLRA here:

• https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html
• https://www.justice.gc.ca/eng/fl-df/divorce/orf-fod.html
• http://ontariocourtforms.on.ca/en/childrens-law-reform-act-forms/

How does the court decide?

Once the parent wishing to relocate with the children has filed the Notice and the other parent has filed the Objection, it is up to the court to decide whether the move will be permitted.

Using the best interests of the child test, the court will also consider:

• The reason for the relocation
• The impacts it will have on the children
• Whether the required notice has been provided
• Whether the proposed new parenting arrangement is reasonable
• Whether both parties have complied with the existing parenting order/s
• Whether the existing parenting agreement or order stipulates a geographic area in which the children must live
• How much time the other parent has spent with the children and their general level of involvement in the children’s lives.

If both parents have roughly equal parenting time in the existing arrangement, the parent wishing to relocate the children must convince the court, on a balance of probabilities, that the move is in the children’s best interests.

If the parent wishing to move has the vast majority of parenting time, the other parent has to convince the court, on a balance of probabilities, that the move is not in the children’s best interests. Where a parenting order is in place, the court will give considerable deference to the wishes of the parent with primary decision-making responsibility, as long as the move is seen to be in the best interests of the children.

Where there are safety concerns

When a woman needs to move – whether that is a change in residence or a relocation – for safety reasons, she may be able to avoid the 60-day notice period.

The Divorce Act (section 16.9(3)) and the CLRA (section 39.3(3)) permit a party to apply to the court for an exemption from the notice period. This is an ex parte process, so the woman’s partner would not know about it until it is over. The woman will need to persuade the court, on a balance of probabilities, that there is reason to believe providing notice would result in a significant risk of violence.

Whether in such an application or in her notice, a woman seeking to move for safety reasons should be prepared to provide details of past and ongoing family violence; including:

• Historic and/or current threats to harm the woman or children or to take the children and not return them
• Past and/or ongoing stalking (in person or online), threats and intimidation
• Ongoing coercive controlling behaviours by the former partner
• Efforts by the other parent to use the children to spy on or harass the mother
• Impact of the family violence on the children
• Why the relocation will be safer for her and the children

Evidence to support relocation of children

A woman whose former partner has been abusive should assume that he will oppose her request to relocate with the children and be prepared to provide strong evidence to support the move. This evidence could include:

• A summary of the history of abuse, including any criminal charges or convictions, child protection proceedings or findings by the family court in previous proceedings, as well as any restraining orders, bail or probation conditions or other court orders limiting the partner’s contact with the woman and/or the children
• A summary of the history of parenting responsibilities: Who does the school call when a child is sick or needs to come home? Who is responsible for supervising homework and taking kids to the doctor or dentist? Who is in charge of extracurricular activities? How is parenting time allocated and spent now?
• An explanation of why the woman wants to move and why this is in the children’s best interests:
  • a firm job offer elsewhere and no employment where she lives now, which will provide financial security for her and the children, better housing, health benefits, enough money for extracurricular activities for the kids, etc.
  • family support, both practical and emotional (for example, housing or child care)
  • more ties to another community than to the one where they live now (for example, the family only moved to the current location a short time before the parents split up)
  • safety reasons, as we have discussed above
• Steps she will take to minimize the impact of the move on the children: keeping them involved with similar extracurricular activities, moving between school years, setting up a way for the kids to stay connected with friends in the old community, etc.
• A proposed new parenting arrangement that does not unduly reduce the other parent’s time with the children. For example, depending on the ages of the children and the amount of time the other parent currently spends with them, the mother could suggest:
  • sharing the costs of the children’s travel
  • accepting a reduced level of child support to reflect travelling costs for the other parent to spend time with the kids
  • sharing transportation responsibilities
  • longer, less frequent time with the other parent
  • more online/telephone time

A new relationship is unlikely to be persuasive evidence that the move is in the best interests of the children unless it is a stable, ongoing situation and the new partner is involved in a positive way with the children.

A recent case explores this thoroughly. The mother of two children wished to move with them to Washington State to join her husband, with whom she had recently had a baby. The other parent opposed the move. While the mother’s husband had been able to conduct his work from the children’s habitual residence before the pandemic, he had had to return to Washington when his visa expired.

The trial judge, based on the evidence presented by the parents and a report from the OCL, supported the mother’s request to relocate, noting that she had a practical and realistic plan to maintain the children’s relationship with the other parent and that her plans were child-focused. He found no suggestion that the mother’s decision to move was to improperly deprive the other parent of time with the children. This decision was upheld by the Court of Appeal.

Importantly the Court of Appeal supported the trial judge’s decision to accept the fact that the mother would move with or without the children and that the status quo was not an option for the court to consider. Both the Divorce Act and the CLRA specifically set out that the court is not allowed to consider whether the parent would move even if they were not allowed to take the children with them.

These new provisions provide more detailed guidelines than have been available before with respect to the relocation of children. However, they could have addressed situations of family violence more strongly. In particular:

• the notice waiver provisions could be more clear and explicit
• the burden of proof is ambiguous; an abuser could attempt to argue he has “substantially” equal time with the children even if he does not, thus placing the burden to prove that the move is in the best interests of the children on the mother
• the factors the court is to consider in making an order should include explicit reference to family violence; in particular, coercive control and the mother’s right to safety

Conclusion

In this resource, we have looked at the new provisions dealing with moving in the Divorce Act and the Children’s Law Reform Act. We’ve explored why a woman might want to move after leaving an abusive partner, the different kinds of moves, what notice the woman must provide, the factors the court considers in making a decision and safety issues.

Finally, we’d like to link to a federal government fact sheet on relocation, which you might find helpful.