The new Divorce Act came into effect March 1, 2021. It has made sweeping changes to the divorce legislation in Canada. In this 3-part series, we will go through some of the main changes from the old system to the new one.
What will each part cover?
I’ve broken this topic down into 3 articles – because this legislation makes such significant changes to the way that divorce is handled legislatively in our Country – I wanted to take the time to not only go through some of the changes, but to address how it will impact families.
- Part I – Terminology around parenting and the focus of the legislation on relationships
- Part II – all about the Best Interests of the Child – how that’s outlined in the new Act, including a brand new full section about addressing the impact of family violence on children and on parenting
- Part III – brand new section on relocation
Reminder: the Divorce Act is complex, with loads of definitions, and we cannot cover every nuance here – mostly we will be talking about how this impacts the parents who are “married spouses” and would therefore be using this new Divorce Act for their divorce issues. Unmarried parents don’t fall under this legislation.
Let’s start with what Relocation means in this new Divorce Act?
There’s 2 different types of moving that’s addressed by the Act.
Change of Residence is addressed in once section (16.8) – this is very broad – it’s a change of where you are living irrespective of how far the move is from your current residence.
Relocation is addressed in another section (16.9) – it also deals with a change of place of residence, but it goes one step further – it’s where that change is likely to have a significant impact on the child’s relationship with the left-behind parent or others.
You’ll notice the language around relationships as the cornerstone of that definition. This is the focus of the legislation, as we talked about in Part I.
It doesn’t give a certain geographic parameter to the change – it depends on the existing arrangement. For one family a change ½ hour down the road may significantly impact the relationship with the child because they’ll be in a different school district and the parenting arrangement is 50/50, whereas for others a move 250 km away may not impact the relationship significantly because one parent only sees the children on school holidays and that can continue despite the move.
Once it’s determined that there is going to be a change of residence or relocation, what happens next?
If you’re a person who has parenting time or decision-making responsibility for children, you are required to give notice of a move – whether it’s a change of residence or relocation.
Who do you give notice to? Someone with parenting time, decision-making responsibilities, or contact time with a child.
There’s a difference in the type of notice you need to give.
For only a change of residence – it has to be (1) prior to the move (20 in writing and needs to give (3) the date of the move (4) the new address and (5) new contact info
For a relocation – it has to provide all the same information as a change of residence, but there’s additional criteria: (6) the notice needs to be given 60 days ahead of the relocation (7) the relocating parent needs to include a proposal for how parenting time & decision-making responsibilities will be carried out after the relocation.
The goal is to get specific early on, so that parties can try to resolve potential disputes over the relocation.
What if someone wants to object to a move?
For a change of residence – there’s no formal objection process, it’s more about knowing where children will be residing.
However, where a move is a “relocation”, then there’s a formal objection process – the objection or a court application needs to be received by the relocating person within 30 days – then the relocation can’t occur until a Court orders that the move is permitted.
It’s interesting to note that someone with only “contact time” like a grandparent or other extended family with court ordered time with children may not object to relocation.
If parents can’t resolve the issues around relocation themselves what happens next?
The court would likely have to get involved. In the past, the Court didn’t have any legislated list to consider to – it was all judge-made law. In this new Divorce Act, there’s a whole list of factors that will be considered in allowing or denying the moving parent’s request to relocate.
#1 – Best Interests of the Child (S16) – per our discussion in Part II
#2 – additional considerations specific to relocation:
- Reasons for the relocation
- Impact of the relocation on the child
- Amount of time w/ child by each person w/ parenting time – level of involvement
- Compliance w/ notice requirements
- Existence of order / agreement that specifies the geographic area where child is to reside
- Reasonableness of the proposal by the parent wishing to relocate
- Compliance with obligations under an existing order / agreement
Factors NOT to consider:
- Double-bind question: Whether a parent would move without the child
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