Difference between revisions of "Moving Away after Separation"
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{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge | {{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge | ||
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}}Change, and how adapt to change, are facts of life in the twenty-first century. Some changes are small, like getting a new haircut or buying a new phone; others, like changing jobs or starting a new relationship, are much more significant. One of the ways family law has changed, particularly over the last twenty years or so, has been the number of cases about parents who want to move, with or without the children, after their relationship with the other parent has ended. Cases involving parents who want to move were once relatively rare; now, it seems that every other case involves an issue about moving. | }}Change, and how adapt to change, are facts of life in the twenty-first century. Some changes are small, like getting a new haircut or buying a new phone; others, like changing jobs or starting a new relationship, are much more significant. One of the ways family law has changed, particularly over the last twenty years or so, has been the number of cases about parents who want to move, with or without the children, after their relationship with the other parent has ended. Cases involving parents who want to move were once relatively rare; now, it seems that every other case involves an issue about moving. | ||
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This definition covers moves by people who have ''an order'' under the ''Divorce Act'' giving them decision-making responsibility or parenting time with a child, whether they want to take the children with them or not. It also covers moves by people who are making ''an application for an order'' about decision-making responsibility or parenting time under the ''Divorce Act''. It doesn't cover people who have ''an agreement'' giving them decision-making responsibility or parenting time. Moves by people who have an agreement about decision-making responsibility or parenting time are dealt with under the provincial ''[[Family Law Act]]''. | This definition covers moves by people who have ''an order'' under the ''Divorce Act'' giving them decision-making responsibility or parenting time with a child, whether they want to take the children with them or not. It also covers moves by people who are making ''an application for an order'' about decision-making responsibility or parenting time under the ''Divorce Act''. It doesn't cover people who have ''an agreement'' giving them decision-making responsibility or parenting time. Moves by people who have an agreement about decision-making responsibility or parenting time are dealt with under the provincial ''[[Family Law Act]]''. | ||
As you can probably guess, the key part of this definition is whether a proposed move is "likely to have a significant impact on the child’s relationship" with the specific people it identifies; not just anyone but only people with parenting time, people with decision-making responsibility, people who have filed an application for parenting time or decision-making responsibility, and people with contact. If a move is going to have a "significant impact" on the child’s relationship with these people, then the move qualifies as a "relocation," and there are different rules about moves that are relocations and moves that are not relocations. So, how do you know whether the impact caused by a move is likely to be "significant" or not? | As you can probably guess, the key part of this definition is whether a proposed move is "likely to have a significant impact on the child’s relationship" with the specific people it identifies; not just anyone, but only people with parenting time, people with decision-making responsibility, people who have filed an application for parenting time or decision-making responsibility, and people with contact. If a move is going to have a "significant impact" on the child’s relationship with these people, then the move qualifies as a "relocation," and there are different rules about moves that are relocations and moves that are not relocations. So, how do you know whether the impact caused by a move is likely to be "significant" or not? | ||
Unfortunately, there are only a handful of cases that deal with relocation under the updated ''Divorce Act'' and the meaning of "significant impact." The good news is that the definition of "relocation" under the ''Family Law Act'' also uses the term "significant impact," and the cases that talk about "significant impact" under the ''Family Law Act'' can be used to understand "significant impact" under the ''Divorce Act''. Here, for example, is what the court had to say about "significant impact" in a 2022 case from the Saskatchewan Court of Appeal, [https://canlii.ca/t/jn5xz D.T.D. v T.A.J.]: | Unfortunately, there are only a handful of cases that deal with relocation under the updated ''Divorce Act'' and the meaning of "significant impact." The good news is that the definition of "relocation" under the ''Family Law Act'' also uses the term "significant impact," and the cases that talk about "significant impact" under the ''Family Law Act'' can be used to understand "significant impact" under the ''Divorce Act''. Here, for example, is what the court had to say about "significant impact" in a 2022 case from the Saskatchewan Court of Appeal, [https://canlii.ca/t/jn5xz D.T.D. v T.A.J.]: | ||
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*a person who has contact with the child. | *a person who has contact with the child. | ||
Under section 16.8(1), a person who plans to make a move like this must give notice about their plans to anyone else who has decision-making responsibility, parenting time or | Under section 16.8(1), a person who plans to make a move like this must give notice about their plans to anyone else who has decision-making responsibility, parenting time or contact with the children. Under section 16.8(2), the notice must state: | ||
*the date of the proposed move, and | *the date of the proposed move, and | ||
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*prepared using Form 1 of the [https://canlii.ca/t/b5cx Notice of Relocation Regulations], and | *prepared using Form 1 of the [https://canlii.ca/t/b5cx Notice of Relocation Regulations], and | ||
*provided to everyone entitled to notice at least 60 days of the proposed move date. | *provided to everyone entitled to notice within at least 60 days of the proposed move date. | ||
Under section 16.9(2) of the ''Divorce Act'' and section 2 of the Notice of Relocation Regulations, the notice must state: | Under section 16.9(2) of the ''Divorce Act'' and section 2 of the Notice of Relocation Regulations, the notice must state: | ||
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The notice must also provide a proposal about how decision-making responsibility, parenting time, or contact could be handled if the move goes ahead. | The notice must also provide a proposal about how decision-making responsibility, parenting time, or contact could be handled if the move goes ahead. | ||
Form 1 can be found on the website of the federal [https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html Department of Justice] as a PDF file that you can download or as a form you can complete and print directly from the webpage. The same website also has a helpful [https://www.justice.gc.ca/eng/fl-df/fact5-fiches5.html Fact Sheet] about moving after separation. | Form 1 can be found on the website of the federal [https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html Department of Justice] as a PDF file that you can download, or as a form you can complete and print directly from the webpage. The same website also has a helpful [https://www.justice.gc.ca/eng/fl-df/fact5-fiches5.html Fact Sheet] about moving after separation. | ||
If the person who plans to relocate doesn't want to give notice, perhaps because of concerns about things like family violence, they can apply to court for an exemption under section 16.9(3), and they don't have to notify anyone else of their application for the exemption as the Rules of Court normally require. The same exemption is available for moves that don't qualify as "relocations." | If the person who plans to relocate doesn't want to give notice, perhaps because of concerns about things like family violence, they can apply to court for an exemption under section 16.9(3), and they don't have to notify anyone else of their application for the exemption as the Rules of Court normally require. The same exemption is available for moves that don't qualify as "relocations." | ||
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The objection must also state the person's views about the proposal, given in the notice, about how decision-making responsibility, parenting time, or contact could be managed if the move goes ahead. | The objection must also state the person's views about the proposal, given in the notice, about how decision-making responsibility, parenting time, or contact could be managed if the move goes ahead. | ||
Form 2 can be found on the website of the federal [https://www.justice.gc.ca/eng/fl-df/divorce/orf-fod.html Department of Justice] as a PDF file that you can download or as a form you can complete and print directly from the webpage. The same website also has a helpful [https://www.justice.gc.ca/eng/fl-df/fact5-fiches5.html Fact Sheet] about moving after separation. | Form 2 can be found on the website of the federal [https://www.justice.gc.ca/eng/fl-df/divorce/orf-fod.html Department of Justice] as a PDF file that you can download, or as a form you can complete and print directly from the webpage. The same website also has a helpful [https://www.justice.gc.ca/eng/fl-df/fact5-fiches5.html Fact Sheet] about moving after separation. | ||
It's important to know that the person who wants to move can go ahead and move if there is no existing order preventing the move or if you don't object to the proposed move, either by applying to court or by providing an objection in Form 2. Don't ignore a notice of a proposed move! | It's important to know that the person who wants to move can go ahead and move if there is no existing order preventing the move or if you don't object to the proposed move, either by applying to court or by providing an objection in Form 2. Don't ignore a notice of a proposed move! | ||
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*a guardian plans to change where a child lives, and the change is likely to have a significant impact on the child's relationship with another guardian. | *a guardian plans to change where a child lives, and the change is likely to have a significant impact on the child's relationship with another guardian. | ||
This section doesn't talk about agreements and orders about contact, and it doesn't talk about the impact of a move on the child's relationship with someone with | This section doesn't talk about agreements and orders about contact, and it doesn't talk about the impact of a move on the child's relationship with someone with contact. It's all about guardians, and the impact of a proposed move on the child. | ||
If a move is proposed and all of the conditions described in section 46(1) are met, section 46(2) describes what the court can and can't think about in deciding whether to allow or prohibit the move: | If a move is proposed and all of the conditions described in section 46(1) are met, section 46(2) describes what the court can and can't think about in deciding whether to allow or prohibit the move: | ||
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If someone with decision-making responsibility or parenting time objects to a proposed move, section 67 of the ''Family Law Act'' says that the child's guardians and persons with contact must make their best efforts to work with each other to resolve any issues relating to the proposed move. The act doesn't say how these efforts are to be made, but the usual out-of-court dispute resolution processes are negotiation, mediation, collaborative settlement processes and arbitration. | If someone with decision-making responsibility or parenting time objects to a proposed move, section 67 of the ''Family Law Act'' says that the child's guardians and persons with contact must make their best efforts to work with each other to resolve any issues relating to the proposed move. The act doesn't say how these efforts are to be made, but the usual out-of-court dispute resolution processes are negotiation, mediation, collaborative settlement processes and arbitration. | ||
If these sorts of out-of-court processes don't resolve the disagreement, then the guardians will have to go to court and ask a judge to make a decision on the application about the proposed move. These applications are governed by section 69, which allows guardians to ask | If these sorts of out-of-court processes don't resolve the disagreement, then the guardians will have to go to court and ask a judge to make a decision on the application about the proposed move. These applications are governed by section 69, which allows guardians to ask the court for orders allowing or prohibiting the relocation of a child. | ||
=====Factors===== | =====Factors===== | ||
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=====The burden of proof===== | =====The burden of proof===== | ||
Section 69 of the ''Family Law Act'' says who has the burden of proof when guardians can't agree about a proposed move, and, like the ''Divorce Act'', the burden shifts depending on the children's schedule of parenting time. If the guardians ''do not'' have "substantially equal parenting time" with the child, under section 69(4)(a) the guardian who wants to move must show that: | Section 69 of the ''Family Law Act'' says who has the burden of proof when guardians can't agree about a proposed move, and, like the ''Divorce Act'', the burden shifts depending on the children's schedule of parenting time. If the guardians ''do not'' have "substantially equal parenting time" with the child, under section 69(4)(a), the guardian who wants to move must show that: | ||
*they are proposing to move in good faith, and | *they are proposing to move in good faith, and | ||
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If the guardian who wants to move can prove these two points, then, under section 69(4)(b), the proposed move is presumed to be in the best interests of the child unless another guardian can prove otherwise. | If the guardian who wants to move can prove these two points, then, under section 69(4)(b), the proposed move is presumed to be in the best interests of the child unless another guardian can prove otherwise. | ||
If the guardians ''do'' have "substantially equal parenting time" with the child, under section 69(5) the guardian who wants to move must show that: | If the guardians ''do'' have "substantially equal parenting time" with the child, under section 69(5), the guardian who wants to move must show that: | ||
*they are proposing to move in good faith, | *they are proposing to move in good faith, | ||
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* ''[[Family Law Act]]'' | * ''[[Family Law Act]]'' | ||
* ''[[Divorce Act]]'' | * ''[[Divorce Act]]'' | ||
* ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec281 Criminal Code of Canada]'', sections 281-283 | |||
* [https://canlii.ca/t/551nx Notice of Relocation Regulations] | |||
===Links=== | ===Links=== | ||
* Legal Aid BC's Family Law website's information page on [https://family.legalaid.bc.ca/children/parenting-guardianship/moving-and-travelling-your-children "Moving and travelling with your children"] | |||
* Federal Department of Justice's Fact Sheet on "[https://www.justice.gc.ca/eng/fl-df/fact5-fiches5.html Moving after separation or divorce?]" | |||
* | * [https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html Notice of Relocation Form] from Federal Department of Justice's website | ||
* [https://www.justice.gc.ca/eng/fl-df/divorce/orf-fod.html Objection to Relocation Form] from Federal Department of Justice's website | |||
* [https://www. | |||
* [ | |||
* [https://www.justice.gc.ca/eng/fl-df/ | |||