Requirements for Moving With Your Child After Divorce

There may be various reasons that you want to move with your child after separation: for new job opportunities, to move in with a new partner, to be closer to family, and more. After a divorce, however, it is important to address relocation issues correctly, as various legal requirements must be met, and it is often not a simple matter. 

This article will discuss key considerations for moving with your child after a divorce. We will discuss your obligations as a parent wanting to move with the child to another location and the factors that a court may consider when determining whether or not to make an order for the child to relocate. Finally, we will discuss a recent relocation case that illustrates how these factors have been applied.

Notice Requirements Under the Divorce Act 

A parent intending to move with their child has an obligation to notify other parties under sections 16.8 and 16.9 of the Divorce Act. Two types of moves involve different notice requirements. 

Change of Residence – s. 16.8 of the Divorce Act 

For a change of residence under s. 16.8 of the Divorce Act, the moving party must notify any party with parenting time, decision-making responsibility, or contact with the child. The notice must be set out in writing and must include the date of the change of residence, the address of the new residence, and the contact information of the moving party or the child. It is also possible for a court to change the requirements, including in family violence circumstances. 

Relocation – s. 16.9 of the Divorce Act 

For a relocation under s. 16.9 of the Divorce Act, the notice requirements are different. Relocation under the Divorce Act is defined as follows:

Relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with

(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or

(b) a person who has contact with the child under a contact order; 

The key part of the definition is that relocation is a move that is “likely to have a significant impact on the child’s relationship” with a party who has parenting time, decision-making responsibility, or contact with the child. 

For instance, a change of residence under s. 16.8 could include a change in the neighbourhood, which would not significantly impact the child’s relationship with the non-moving parent. In contrast, relocation would be a more drastic move that would affect the non-moving parent’s ability to exercise parenting time. 

If the move is a relocation, the moving party must provide notice of the move at least 60 days before the proposed relocation date. The notice must be provided to anyone with parenting time, decision-making responsibility, or contact with the child, which usually includes the other parent. 

The notice must include:

1. The expected date of the move; 
2. The address of the new place or residence, including contact information of the moving party or the child; 
3. A proposal regarding how the non-moving party would exercise their parenting time, decision-making responsibility, or contact; 
4. Any other requirements in the regulations. 

In circumstances involving family violence, the court can modify any of the notice requirements or order that they do not apply. 

When is a relocation approved?

The moving party is permitted to relocate with the child if:

1. They have a court order authorizing them to do so; 
2. The non-moving party does not object to the move within 30 days of receiving notice from the moving party, and there is no other court order that prohibits the move. 

Non-Moving Party Can Object 

Upon receiving notice of the proposed relocation, the non-moving party can object by filing a form that includes the following information from that party:

1. A statement that they object to the relocation;
2. Their reasons for objecting to the move; 
3. Their views on the proposal for parenting time, etc. as set out by the moving party.

Factors for the Court to Consider for a Relocation 

The court must focus on the best interests of the child when deciding whether or not to grant the relocation, under s. 16(3):

16(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a)the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b)the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c)each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d)the history of care of the child;

(e)the child’s views and preferences, giving due weight to the child’s age and maturity unless they cannot be ascertained;

(f)the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g)any plans for the child’s care;

(h)the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i)the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j)any family violence and its impact on, among other things,

(i)the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii)the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k)any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The Divorce Act sets out some additional factors to be considered at s. 16.92:

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize relocation of a child of the marriage, the court shall, to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

Also, the court must not consider whether the moving party would relocate without the child or not relocate. 

Burden of Proof for Relocation

The burden of proof (i.e. who must prove their case) depends on the existing parenting schedule of the child. If the child spends almost equal time with each party, the moving party must prove that the relocation would be in the child’s best interests. 

If the child spends most of their time with the moving party, then the opposing party must show that the relocation is not in the child’s best interests. 

Court Finds Mother’s Relocation Request Reasonable

In a recent case, Rinetti v. Kent, 2022 ABQB 1, the mother had primary care of two young children and was seeking to move from Alberta to Colorado with them, which would involve a 19-hour drive by car. The father remained in Alberta. The children had a strong relationship with their mother, and their relationship with their father improved with time. The court found that each parent would facilitate the other’s relationship with the children. 

The mother was seeking to move because she was struggling financially and required the support of her family in Colorado, who could provide low-cost accommodation and pay for her expenses. The maternal grandparents could also assist with raising the children. 

The court found that the mother’s relocation request was reasonable, as she could not afford to remain in Alberta, and it made sense for her to return to Colorado, where her family would support her as a young mother aged 22. The court also noted that the children’s relationship with the mother was stronger. While the father’s relationship with the children improved, he had struggled in the past by treating the mother poorly in front of the children. Also, the father’s unpredictable work schedule would make it difficult to care for the children full-time if they remained with him in Alberta. Finally, despite the distance, the mother was willing to facilitate generous access to the father. She offered to divide the driving so that the father could exercise his parenting time, and she agreed to stop receiving child support from the father due to his increased travel expenses to spend time with the children. 

Overall, the court will consider a holistic set of factors for determining whether relocation should be granted. 

Mincher Koeman Family Lawyers Can Assist with Relocation 

It is often a contentious matter if a parent is seeking to relocate with the children, as it can significantly impact the children’s relationship with the non-moving party. The court must also consider many factors that can complicate one’s divorce case. 

If you want to relocate with your children, you should speak with our family law lawyers at Mincher Koeman, who are experienced in assisting parties with relocation. Our Calgary family law lawyers are dedicated to finding the best resolution for your parenting issues after divorce. 

To book a consultation, please contact us online or by phone at 403-910-3000.