FAMILY | Relocations with Children: The law before and the law now.

AuthorDargatz, Sarah

Reading Time: 5 minutes

New moving rules apply to families going through a divorce or already divorced, including those with existing orders or agreements.

The federal government has made some important changes to the Divorce Act. John-Paul Boyd provided an overview of the changes in his November 2019 article "Important Changes to the Law Are Coming: Mark your calendar!". At that time, we expected the changes to come into effect in July 2020. However, due to the global pandemic, the changes instead came into effect on March 1, 2021.

One change likely to impact many families is the new rules about moves and relocations.

Separated and divorced parents who plan to move must give notice in certain circumstances. These new requirements apply to all families who are going through a divorce or are already divorced, including those with existing orders or agreements.

The Law Before March 1, 2021

It was the case, and still is, that a Canadian court cannot dictate where a Canadian citizen can live. However, a court can dictate with whom a child will live in the case of separated parents. Before March 1, 2021, the Divorce Act had no specific rules about how parents needed to communicate about relocating a child. Or about how a court should decide where a child should live if one parent chose to relocate.

However, we had caselaw that set out general principles of what a judge should consider. The key case was Gordon v. Goertz, decided by the Supreme Court of Canada in 1996. Each province also had cases from their Court of Appeals that interpreted Gordon v. Goertz further, sometimes inconsistently. Even with theses cases providing guidance, it was often difficult for parents, and lawyers, to predict what a judge would order when one parent wanted to relocate with a child. In fact, Rosemarie Boll wrote a LawNow article in 2013 about the idea of Relocation Advisory Guidelines to provide further assistance.

The changes to the Divorce Act reflect many of the principles set out in Gordon v. Goertz and the subsequent appellate caselaw. Both the caselaw and the Divorce Act make it clear that the primary consideration is always: what is in the child's best interests?

The Law Now: Notice of changing residences

The new Divorce Act distinguishes between "changing residences" and "relocations".

A "change in place of residence" is a move that does not impact relationships (for example, a move to a new house in the same city).

Anyone who has parenting time...

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