Relocation - Can I Move With my Children?

Can I move with my children after divorce?

You can likely move with your children after a divorce if you are the sole guardian of the children, have sole decision-making, or if there is a written agreement or court order permitting you to move without requiring the other parent’s consent. In other circumstances, you may need a court order in order to bring your children with you. This article discusses what's involved.

Notice of Relocation

The Divorce Act contains a procedure for divorced or separated married parents who want to move with their children to follow. Different procedures will apply for former common law parents, who will typically need the agreement of the other parent or a court order.

A divorced or separated married parent who wants to relocate can provide notice in writing to the other parent, at least 60 days before the move, in a format set out in the Divorce Act. The notice must include:

• The date the parent expects to relocate;
• The address of the new residence and the contact information of the parent or child; and
• A proposal on how parenting time and decision-making responsibility will be exercised after the move

If the non-moving parent does not agree to the move, that parent must object to the notice of relocation within 30 days of receiving it. The objection must contain:      

• A statement that the parent objects to the relocation;
• The reasons for the objection; and
• The parent’s views on the proposal for the exercise of parenting-time and decision-making responsibility

If the non-moving parent does not object, the relocating parent may move with the children. If the non-moving parent objects, the relocating parent will require their permission or a court order to move with the children.

Avoiding a relocation fight

Relocation disputes can lead to costly, extended court battles. Unsurprisingly, the relocation issue has generated a considerable amount of case law across Canada. These disputes most typically arise when one parent seeks to move, with their children, a significant distance away from the other parent. The parent who is left behind may be concerned about their ability to be involved in the children's life from a distance.

Sometimes those concerns can be fully addressed, and sometimes not. It is nearly always best to discuss your plans to move with the other guardian of the child before taking steps to finalize relocation. Providing notice may help avoid an urgent court application by the other parent to prevent the move. Even if you have the legal right to move without a further court order, it's usually best to provide plenty of notice and make efforts to resolve any concerns collaboratively to avoid disputes.

Needless to say, communication and negotiation is even more important if you are applying for a court order to allow the move. In worst-case scenarios, relocation disputes can drag on for years.

Will my relocation application succeed?

Relocation applications can be refused by Canadian Courts in situations where there is a joint or shared custody arrangement. Since relocation often involves a change in the custody and access dynamic of the parents, the non-moving parent has the legal right to apply for a change in custody to prevent the child from being moved with the departing parent.

The leading cases on child relocation are Gordon v Goertz, [1996] 2 SCR 27 and Barendregt v Grebliunas, 2022 SCC 22.In those cases, the Supreme Court of Canada set out a number of factors that the moving parent must demonstrate to obtain approval for the relocation. Those factors include:

• The reasons for the relocation;
• The impact of the relocation on the child;
• The child’s views and preferences, where appropriate;
• The history of caregiving;
• Any incidents of family violence;
• A child’s cultural, linguistic, religions and spiritual upbringing and heritage;
• Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; and
• The existence of a court order or agreement that specifies the geographic area in which the child will reside

Courts are called upon to make an educated prediction as to the best interests of the children, based on evidence of their pre-relocation lifestyle and evidence of what the parents believe will transpire after relocation if it is permitted.

In short, relocation applications will succeed where the Court is persuaded it is in the best interests of the children.Proving that can be a complex challenge.

The best interest of the child

Although the court cannot prevent you from moving, the relocation of children can be halted as decision-making rights do not inherently include the right to change a child’s place of residence without the other parent’s consent. Ultimately, the assessment of the child’s best interest is the focus, rather than the rights and interests of the parents.

If the relocation prevents the child from having a relationship with one parent, it may be refused. The Courts of Appeal in bothAlberta and British Columbia agree that more weight must be given to the parent-child relationships over other competing interests in relocation decisions. This is because they are primarily taking into account the impact of the change on the child, as opposed to the impact of the change on the parents.The best interests of the child must prevail in relocation decisions.

Judges generally act to minimize the potential disruptions to the stability of the child’s life after separation. This is why the court is likely to balance any disruption to the child’s life caused by being removed from their home, school and community, against any change to the parenting arrangement at the time of the move. It is of vital importance that any relocation is in the best interests of the child.

Relocation disputes can be complex

The Courts have great discretion when it comes to determining whether the relocation of a child should be permitted. Each decision is case specific, and therefore, your particular circumstances play a great role in determining whether you will successfully relocate with your child. It is always best to seek legal advice regarding your particular, unique circumstances.

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