Following a divorce, you may seek to make changes to help foster a fresh start for you and your children. Some of these changes, such as securing a new job or moving closer to your loved ones, might require moving a few towns over or to a different part of the province. However, it is important for any parent seeking to move with their child to understand their rights and responsibilities regarding relocation.  

This blog will explore various considerations for parents regarding relocation, including factors a court may weigh when determining whether or not to allow the parent to move with the child.

What Is the Difference Between Moving and Relocating?

Moving down the street or to a different neighbourhood within the same city is not typically considered a “relocation” in parenting matters. However, a parent moving to a different city, province, or country usually becomes contentious. Under the Divorce Act, “relocation” is defined as a move that is likely to significantly impact a child’s relationship with their parent or someone who has parenting time (access), decision-making responsibility (custody), or contact time. 

The Relocation Process: Providing Notice

The federal Divorce Act sets out the legislative framework and processes to be followed when one parent seeks to relocate with a child following a divorce. 

Notice Requirements by Parent Seeking to Move or Relocate

A relocating or moving parent must first notify the other parent of their intention to relocate. Section 16.9(1) of the Divorce Act provides that a person who has parenting time or decision-making responsibility for a child of the marriage and intends to relocate must give any other parties who have parenting time, decision-making responsibility, or contact under a contact order with notice of their intention to do so.

The notice provided by the party seeking to relocate must be provided at least 60 days in advance of the proposed relocation and must include specific information in a Notice of Relocation form, such as:

• The date for the proposed move;
• The new address and contact information;
• Proposed amendments to the existing parenting and contact schedule in order to support the child’s ongoing relationships with the other parties after the relocation; and
• Any other requirements pursuant to the regulations.

Additional Considerations Regarding Relocation Notice Requirements

If a relocating parent unilaterally decides to relocate without providing appropriate notice to the other interested parties, the courts may view this unfavourably. 

A court may also change the requirements depending on the circumstances of the party, including any family violence considerations.

Objecting to Relocation

After notice has been provided in the correct form, the other parent may object to the child’s relocation within 30 days of receiving the notice by using the Objection to Relocation form, which includes the following information:

• A statement affirming that they object to the relocation;
• The reasons that they object to the relocation; and
• Their views on the proposed parenting and contact schedule changes outlined by the moving party.

It is important to note that a non-moving parent may only object to the relocation as it affects the child’s relocation. In other words, they cannot object to the moving parent’s relocation, only the child’s. Additionally, only a parent can object to a proposed relocation, not someone with contact time with the child. Therefore, while a grandparent cannot object to the child’s relocation, they may request that an updated contact order be implemented after the relocation. 

Relocation Must Be in the Best Interests of the Child

If the non-moving parent has objected to the relocation, the moving parent must bring an application seeking the court’s permission to relocate with the child. Before arriving at its decision, the court will consider various factors to determine whether the relocation is in the child’s best interests.

The “Gordon Factors” for a Child’s Best Interests

Some factors the court may consider are derived from the Supreme Court of Canada’s decision in Gordon v. Goertz, now referred to as the “Gordon Factors.” These factors include:

1. The existing custody (decision-making responsibility) arrangement and relationship between the child and the custodial parent;
2. The existing access (parenting time) arrangement and relationship between the child and the parent with the parenting time/access;
3. The desirability of maximizing contact between the child and both parents;
4. The child’s views;
5. The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the child’s needs;
6. Disruption to the child caused by a change in custody (decision-making responsibility); and
7. Disruption to the child caused by their removal from family, schools, and the community they have come to know.

Best Interests of the Child Under the Divorce Act

Section 16.9(2) of the Divorce Act outlines additional factors for the court’s consideration when determining whether the relocation is in a child’s best interests, including:

1. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
2. The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
3. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
4. The history of care of the child;
5. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
6. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
7. Any plans for the child’s care;
8. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
9. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
10. Any family violence and its impact on, among other things,
    • The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    • The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
11. Any civil or criminal proceeding, order, condition, or measure relevant to the child’s safety, security and well-being.

These factors are largely echoed by provincial family legislation across Canada. However, none of these factors will be determinative, and each case must be decided on its own facts.

Who Bears the Burden of Proving a Relocation Is in a Child’s Best Interests?

The moving parent bears the burden of establishing that the proposed relocation is, in fact, in the child’s best interests. However, if the child spends most of their time with the moving parent (as set by an order or agreement), the objecting parent must prove that the relocation is not in the child’s best interests. 

Permission to Relocate With the Child

The party or parent seeking to relocate with the child may do so once the court has authorized them. Alternatively, the moving parent may proceed with the relocation if the non-moving party does not file an objection within 30 days of receiving notice of the proposed relocation and no other court orders prohibit the move. 

Contact Getz Collins and Associates for Trusted Advice on Relocation and Mobility Concerns

At Getz Collins and Associates, our experienced family lawyers understand that each family law matter is unique, which is why we offer flexible family law services and cost-effective solutions to accommodate our clients’ particular needs. An application for relocation can involve a lengthy, complicated process and may require several court appearances before a final decision is made. Working with our team will help you safeguard your interests and plan for your family’s future.

With offices conveniently located in Calgary and Strathmore, Getz Collins and Associates proudly represents clients in communities throughout Alberta. Please contact us online or call us at (587) 391-5600 to schedule a confidential consultation with a member of our team.