Difference between revisions of "Moving Away after Separation"

It's easy to understand why parents rarely agree when one of them wants to move. Even a small move can upset an established pattern of parenting time and require the children to change schools and extracurricular activities. Larger moves will certainly upset whatever arrangements are in place for parenting time and, where the children's time with a parent is cut back, can have a profound impact on the quality of the relationship between the children and the parent who didn't move.

(Don't worry, there aren't really 87 sections about relocation in the new ''Divorce Act''. When a statute is changed to add a new section in the middle of the statute instead of at the end, rather than renumbering everything the new section is numbered with a decimal point. The old ''Divorce Act'' was numbered sequentially, with section 17 following section 16, section 16 following section 15, and so on. When the new sections were added between sections 16 and 17 of the old act, they were numbered 16.1, 16.2, all the way through to 16.9. And when more sections needed to be added after section 16.9, they were numbered 16.91, 16.92 and so on. As a result, there's just 7 sections that deal with relocation.)

Under section 16.91(1) of the ''Divorce Act'', people who have decision-making responsibility or parenting time have 30 days to object to a proposed move, beginning the day after they receive notice of the proposed move, if the person proposing to move is also proposing to move with one or more of the children. If the person proposing to move is not planning on moving with the children, you ''do not'' have the right to object to the move. Similarly, people who have contact with a child also ''do not'' have the right to object to a move; they're entitled to notice about a proposed move, but they can't do anything to stop it.

If the court ''does not'' allow a proposed move, that should be end of things. Section 17 of the ''Divorce Act'', which is about changing orders including parenting orders and contact orders, says that:

In other words, if the court has refused to make an order for parenting time or decision-making responsibility under section 16.1 or change an existing order for parenting time or decision-making responsibility under section 17 to allow a proposed move, the refusal itself is not a reason to change an existing order for parenting time or decision-making responsibility.

If the court ''does'' allow a proposed move, things are different. First, the fact that the move has been allowed is a reason to change an existing order for parenting time or decision-making responsibility. Section 17 also says that:

This is important, of course, because moves that are likely to significantly impact the child's relationship with someone with parenting time are also likely to disrupt that person's ability to spend time with the children the way they used to. Whatever the schedule of parenting time used to be, if the child is moved further away than a 30- or 60-minute drive, it may be impossible to continue the usual schedule and the schedule will need to be updated.  

This is important, because the cost of travelling to see the children is likely to be much higher after a move than it was before the move. These expenses may include the cost of gasoline and meals for a person who is driving to see the children, the cost of airline tickets for the person or the children, and the cost of hotels when the person travels to see the children. Under section 16.95, the court can order that the person who moved must pay a share of these expenses.

The "factors set out in section 37(2)" are the factors the court is required to consider when making decisions about the best interests of children. In addition to considering the reasons for the move, the court must consider the best-interest factors in section 37(2) and the additional factors in section 38 that apply when family violence is an issue. Here are the best-interest factors in section 37:

Under section 66(2), the moving guardian can apply to court for an exemption from the notice requirement if there are concerns about family violence or if the child has no ongoing relationship with a guardian or a person with contact, and they don't have to notify anyone else of their application for the exemption as the Rules of Court normally require.

In other words, if the guardian who wants to move has the child for most of the time, the guardian must only prove that they are proposing to move in good faith, using the factors in section 69(6), and that they've proposed reasonable arrangements for how parenting could work after the move, and the move is presumed to be in the best interests of the child. The burden lies on the other guardian to show that the move is not in the best interests of the child. If the guardians share the child's time, then the guardian who wants to move must also prove that the proposed move is in the best interests of the child.

Section 64(1) of the ''Family Law Act'' also allows the court to "make an order that a person not remove a child from a specified geographical area," called "non-removal orders." In the case of [https://canlii.ca/t/jf8ks K.K. v D.H.], a 2021 decision of the Provincial Court, the judge made an order under section 64 ''after'' a guardian had moved with the child from Nanaimo to Victoria.