Upcoming Divorce Act Amendments to Impact Mobility Rules

The upcoming amendments to the federal Divorce Act in 2020 will add procedural rules and obligations to the concept of mobility and the relocation of a child. Currently, a parent must seek the court’s approval to relocate in the form of a mobility application when the other parent objects to the move. Mobility applications will remain in use after the amendments, however, there will be additional rules around form and timing of notices and objections to a move. Timing restrictions will be imposed whereby if a parent does not object to the other parent’s proposed relocation in a specific period of time and in a specified form, then mobility will go ahead. 

Notice is Required in Every Case

Going forward, any parent with parenting time or decision-making responsibility with respect to their children will be required to provide notice to any other person with parenting time or decision-making ability with respect to a move. This applies even if the move is local, and even if the person moving does not plan to move with the child. This is because any a person with parenting time moves or relocates, it has the potential to impact the child in some way.

The notice will need to be given in writing at least 60 days before the proposed move and must include certain information, including:

• the proposed date of the move
• the new contact information
• a proposal for a new parenting arrangement, if necessary, including any changes to parenting time and decision-making in light of the relocation

There will be a prescribed form to use for such notice, though it has not been made public just yet.

Form and Timing of an Objection Will be Crucial

Under the new changes, the time to object to such a proposal will be drastically limited. In addition, there will be an obligation on parents to attempt to resolve any mobility disputes on their own, before seeking a resolution in court.

If a resolution is not likely, the objecting parent will have two options for objecting to the proposed relocation: using a standard form to provide notice of their objection, or by bringing an application in court. If the objecting parent chooses to bring an application in court, this will have the effect of allowing the court to decide on the issue of mobility. If the objection is made by way of a standard form, this will then place the onus on the relocating parent to either acquiesce to the objection or bring a mobility application in court.

Either way, the objecting parent will have just 30 days from receipt of the proposed relocation notice to object. If no objection is filed by one of the two methods above within that time, the other parent will be permitted to proceed with their proposed relocation as set out in the original notice.

The Onus Will Shift Depending on Parenting Arrangements

The onus of proving what will be in the child’s best interests in a mobility dispute will shift, based on the existing access arrangements between the child’s parents. In situations where parents share relatively equal parenting time with the child, the relocating parent will bear the burden of establishing that the move is in the child’s best interests.

If one parent has substantially more time than the other with the child, then the parent objecting to the move will face the burden of establishing why the move is not in the child’s best interests.

Seek Legal Advice As Soon As Possible

For parents wishing to object to a former partner’s relocation given the potential impact on their children, seeking advice immediately will become crucial. Following changes to the legislation, the form and timing of an objection must be closely observed in order to fall within the rules. This issue is too important to risk a lapsed limitation period or insufficient notice, so as soon as you’re aware that you may be facing a mobility dispute, contact an experienced family law lawyer immediately to discuss your next steps.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to child custody and access and mobility disputes following the breakdown of a relationship. We will work with you to ensure that your voice is represented in any dispute around the relocation of your child(ren). Contact our office today by calling us at 403-910-3000 or contact us online.