For those with children, moving after a separation or divorce is not as simple as it may sound. Even if you think your matter has resolved and you have an order or agreement outlining the parenting time you and the other parent have with your children, the Family Law Act and the Divorce Act create extra restrictions around moves, also known as “relocations,” that can limit your movement without first obtaining the consent of the other parent or the court.

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Relocation is one of the more complex and challenging matters to address in a family law action. The Family Law Act and the Divorce Act both address the limitations and requirements around proposed relocations, and while these Acts are similar in nature, their requirements are slightly different from one another. If you are not sure which act applies to your situation, make sure to consult with a lawyer first before taking steps to relocate.

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This article will only summarize relocation requirements under the Family Law Act. Each individual case is fact specific in these matters and they can quickly become complicated. There are various factors the court must consider before either granting or prohibiting the relocation. Because of this, it is best to consult with a family lawyer early on to discuss your options and strategize for the best approach. Our office would be happy to assist you in navigating this matter and assessing the strengths and weaknesses to a relocation proposal.

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What is the difference between a move versus a “relocation” pursuant to the FLA?

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Under the Family Law Act, in situations where you do not already have an agreement or court order that addresses parenting arrangements, a move that can reasonably be expected to have a significant impact on that child’s relationship with another guardian is considered a “change in residence”.

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Similarly, in cases where there is an existing agreement or court order about parenting arrangements, a “relocation” is also defined to mean that a change in the location of the child’s residence, or the residence of that child’s guardian, that can be reasonably expected to have a significant impact on that child’s relationship with a guardian or someone else that has a significant role in their life.

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What this means is, any move that will significantly impact the child’s relationship with their guardian or important person in their life, is a “relocation.” This also means that if you are the guardian to a child and you are seeking to move without the child, and that move would impact the child’s relationship with you to a significant extent, that is also considered a “relocation” and that decision comes with statutory obligations to address prior to moving.

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What is required of the parent wishing to move – either with or without the child?

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If there is no agreement or order already in place, then the guardian wishing to change the child’s address will need bring an application pursuant to section 45 of the Family Law Act to address parenting time accordingly.

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If there is an agreement or order that addresses parenting arrangements, then the guardian looking to relocate, either with or without the child, must give 60 days advance written notice to all other guardians and persons that have contact with the child, that specifies the date of the relocation, and the name of the proposed location.

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What if I don’t agree to a guardian relocating with the child?

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Object! Object! Object!

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Ideally, you will have done your best to communicate with the other guardian and persons having contact with the child to cooperate and resolve the issue of the proposed relocation with creative solutions – however, this is not always possible.

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The reality is, if you are not confident an agreement can be reached to resolve the issue, you only have 30 days to file an application for an order to prohibit the relocation. This is the only way to formalize your objection and it must be done quickly.

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Otherwise, if you do not file the application objecting to the relocation within 30 days, section 68 of the Family Law Act permits the relocation to occur on or after the date that was set out in the notice.

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Notice of relocation was given and an application for an order to prohibit the relocation was filed – now what?

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This is where things can get a little complicated. The test for the court to determine whether the relocation should be granted first depends on the current parenting time allotment. This means, it depends on whether or not the parties have substantially equal parenting time.

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Ultimately, in applications by a guardian seeking to prohibit the relocation, there are three aspects the court will consider in its analysis:

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1. Is the proposed relocation is made in good faith;
2. Is there a reasonable and workable arrangement to preserve the relationship between the child and none relocating guardian; and
3. Is the relocation in the best interests of the child pursuant to section 37 of the Family Law Act.

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The responsibility of which parent has to prove those things depends on who has the majority of parenting time or if the time is shared equally.

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What does it mean for a proposed relocation to be made in good faith?

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When the court is asked to determine whether a proposed relocation has been made in good faith by the guardian seeking to relocate, the court must consider all relevant factors, including but not limited to the following:

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1. The reasons for the proposed relocation;
2. Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
3. Whether notice was given under section 66 of the Family Law Act;
4. Any restrictions on relocation contained in a written agreement or an order.

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As you can see, considering a relocation, particularly with your child, can quickly become a complicated matter. There are various factors the court must consider before either granting or prohibiting the relocation. Because of this, it is best to consult with a family lawyer early on to discuss your options and strategize for the best approach. Our office would be happy to assist you in navigating this matter and assessing the strengths and weaknesses to a relocation proposal.

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