Change of residence
After the modifications come in force, the Divorce Act will distinguish between relocation and simple change of residence. Change of residence is now seen as less significant event and, consequently, procedurally requires less.
When it comes to the change of residence, there is no requirement of a 30-day notice as it was before. Yet, a written notice to the other parent (person with parenting time, decision making responsibility or contact order) is still required (without specifying a time limit) with the date of the expected change, new address and contact information (like the child and / or a parent’s phone number). This less strict approach is chosen because change of residence is, in practical terms, something like moving within the same area, so that the existing arrangements will not be meaningfully affected.
Still, the Court may relieve the moving parent from the obligation to give such a notice if it is not appropriate (in case of family violence, for example). An application for such a relief may be made without giving notice to the other party.
Similarly, if a person with a contact order wants to change his (her) address, he (she) will have to notify any parent (person with parenting time and decision-making responsibility) about this intention, date of change, new address and their contact information. Indeed, the parents should know where the child goes for a visit.
Relocation as a significant change
Relocation means a change of place of residence of a child that is likely to have a significant impact on the child’s relationship with one of the parents or other important people in his life. We are talking, firs of all, of moving far away, probably beyond the provincial borders or at least to another town.
Here the notice is required in 60 days in advance and should be given in the form “prescribed by regulations.” In this notice the moving parent should specify the expected date of relocation, new address, contact information (for both the parent and the child, if the child is relocating together) and — necessarily — a proposal about how the relationship (parenting time, decision-making responsibility, contacts) will be organized in the future.
In the same way as with the residence change, a party in fear of domestic violence (or other serious risk) the Court may modify these requirements and decide if it is appropriate for the other parties to know the new address. Such an application can be made without notifying any other party. The Court will then decide if a notice is due or not.
This new 60-day period (twice as long as before) is given to help the parties to reach an agreement before they will need to go to Court.
Previous case law required that a parent asking to move the child out of a province show that the decision to relocate was made to meet the child’s needs and that it was either possible to facilitate continued access to the other parent, or the other parent did not have a positive relationship with the child. Yet under the modified Divorce Act the case law can also change and the Courts can develop new requirements.
Rules and factors
The relocation will be allowed if the other parties did not formally object within 30 days from receiving the notice and there is no existing Court order prohibiting such a relocation. In case of formal objections or existing prohibitions, the Court’s authorization will be needed.
The objecting party should explain the reasons for the objection and express his (her) views on the proposed organization of parenting time, allocation of decision-making responsibility and contacts. To simplify the process, this objection could be made not only as a Court application but also by filling a special form.
The Court, making its decision, will consider how diligently the relocating parent was complying with the rules, orders and procedural steps before. The Court will also look into the other parent’s behaviour. If there was, for example, obstruction of the child’s communication with the other parent or constant refusal to pay child support the Court will take it into account.
The Court will pay attention to the previous orders concerning geographic area of the child’s presence (like 50 km around Montreal, for example) and non-removal clauses.
Reasons for relocation (and if they are in line with the best interest of the child), practical sense (reasonableness) of the proposals (including the resulting travelling expenses and accommodation costs), child’s age, distance, foreseeable impact on the child, amount of the time usually spent with the child by each party — will also be looked into.
The Court may also provide for apportionment of costs of travel (including gas, mileage, bus, train or plane tickets) and other expenses of the parent who is not relocating, related to his (her) parenting time.
The Court should not, however, ask the relocating parent if he (she) would move without a child or not, as every answer is bad: “I would not” shows that relocation plan is not that important, while “yes I would” demonstrates that the parent is not so much committed to the child.
Proof
If both parties equally complied with the rules, orders, awards and agreements, if the child spent about the same time with each, it will be on the moving parent to prove that the contemplated relocation is in the best interest of the child. In this scenario the impact of such a relocation is presumably very significant, so the burden of proof is really hard to meet. Alternatively, if vast majority of the child’s time is spent with the moving parent (a “primary caregiver”), then it will be on the objecting parent to show that relocation is not in the best interest of the child.
These changes into the Divorce Act are not in force yet. They were meant to become in force on July 1, 2020, but in the circumstances, it is not clear if this date will be observed. If you have questions, do not hesitate to contact our office for a consultation by phone: 514-816-4150 or via email: [email protected].
Lawyers of Allen Madelin are recognized to be among the best divorce lawyers in Montreal. They defend their clients’ interests vigorously and with commitment in divorce, separation, spousal support, child support payment and custody cases. They also offer education on the important implications of the recent changes in the Divorce Act. Contact us for more information.
