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Moving after a divorce can raise mobility issues

By Sean Schaefer

After a separation or a divorce one person may want to move, to another city, province or even another country. Problems arise if there are children involved since any parenting time agreement will no longer work if the move is significant.

People in this situation benefit from the services of a family lawyer who can guide them through what are known as mobility issues. These cases can be complex and are always fact-driven.

Not all moves are relocations

The Divorce Act has different rules depending on whether the person who has been granted parenting time is moving or relocating. A simple move to an address in the same community should not affect the parenting schedule. Still, the parent is required to inform their ex-partner of their intentions and provide the new address so that the children can be dropped off and picked up as before.

But if someone with parenting responsibilities plans to relocate to a community a significant distance away, they must seek the consent of the other parent or court approval, since the parenting time schedule will no longer work.

If someone is planning to relocate, they must:

  • give notice at least 60 days before the move
  • provide specific details about the move.

The Notice of Relocation form shows the information you must include in the notice. That will include the planned move date, the new address and contact information. The parent applying for the move will also be required to suggest how the parenting and contact schedule could be changed to help support the child’s relationships other the other parent and any other family member.

Keep trying to come to an agreement

The Department of Justice (DoJ) states that the Divorce Act expects parents to try to work out issues such as relocation by using out-of-court family dispute resolution processes such as negotiation and mediation.

“It is generally better for parents to come up with their own solution, as you know your children best,” the DoJ states. “A judge may also make a decision that one or both of you do not like.”

If both parents agree to the child’s relocation, no court application is needed. The relocating parent can move with the child on or after the date set out in the notice if:

  • the other person with parenting responsibilities who received the relocation notice does not object to the child’s move within 30 days of receiving the notice; and
  • there is no court order prohibiting the move.

Although the Divorce Act does not require it, the DoJ notes it can be a “good idea to have the new parenting schedule and place of residence set out in an updated court order … the agreement can be put in a court order relatively easily.”

The DoJ adds that if you do not update the court order, “it may cause difficulties with schools and other authorities, and it would be difficult to enforce the new arrangement, if needed.”

Points to consider

Parents are advised to contemplate these points when considering a relocation:

  • If the move happens, are there ways to make up some of the parenting time for the non-moving parent, such as extra parenting time in the summer or during school holidays?
  • Could the move wait until the child is older?
  • If the move is to join a parent’s new partner, could the partner instead move to the child’s current residence so that the parenting schedule doesn’t need to change?

It is important to examine each situation and its impact on the child. Sometimes even a move of a short distance can be a “relocation” if there will be a considerable impact on the parenting schedule.

Objections to the relocation

If someone who has been granted parenting time does not agree with the plan to relocate the child, they can file an objection with the court. But there are two key points to consider.

  • It is only possible to object to a plan to relocate a child. One parent cannot object to the other parent’s plan to move.
  • Only a person with parenting responsibilities can object. A person with a contact order cannot object to a plan to relocate a child. They can, however, ask for a contact order to be changed if the relocation is permitted.

If a parent does not agree with the plan to relocate their child and they cannot come to an agreement with the other parent, they have 30 days to object after they receive the relocation notice.

There are two ways to object:

  • A parent can object to the relocation of the child by giving the other person the reasons for their objection. The Objection to Relocation form outlines the information that must be submitted, including the reason for the objection and their views on the relocating parent’s proposal for parenting time, contact and decision-making responsibility.
  • They can apply to the court to prevent the relocation.

Once a legitimate objection is raised, the relocation cannot take place until a judge decides if it is in the child’s best interests. Once a parent receives an Objection to Relocation or a court application opposing the relocation has been filed, they cannot move the child without a court order.

Factors the court will consider

When considering a relocation, the paramount concern of the court will be the best interests of the child. The court will consider:

  • The reason for the relocation. Is it because of a new job, a new partner or to allow the child to attend a specific school?
  • The impact of the relocation on the child. Do they have family in the current community or the proposed new community?
  • Parenting time of each parent. Does the child currently have strong relationships with both parents or is one largely absent?
  • Have the relocation notice rules been followed? If not, that will reflect badly on the parent requesting a relocation.
  • Is there a court order, agreement or arbitral award stating a child must continue to live in a specific city?
  • If the relocation proposal reasonable? Is it practical for the non-moving parent to travel to the child’s new location, or how difficult will it be for the child to travel back to their old community?
  • If the parents complying with family law orders, agreements and arbitral awards. If the parent proposing a move has denied parenting time in the past, that may predict future problems. Conversely, if the parent who does not want the move has failed in the past to use their parenting time or has not paid child support, that will work against them.

Exceptions can be granted

A parent may have concerns about their safety or the safety of their children and therefore does not want to give their former partner the new address. In that case, the parent can ask the court for a change to the notice rules, which can be done without the other parent knowing.

The Divorce Act lists family violence as a reason for granting a change to the notice rules. The court will want to see evidence of family violence (911 calls, police reports, photos, medical documents) to support this request.

Contact us for assistance

If your former partner relocates with your child without your consent or permission from a judge, you can obtain a court order for the immediate return of the child. If you are in this situation or you want to relocate with your child, speak to a lawyer before acting. The team at Demas Schaefer is ready to guide you. We offer a free 15-minute telephone or video consultation where we can discuss your case and explain your options. Contact us today for an appointment.

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