Section 16.9 of the Divorce Act: Relocation

Notice

16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

Content of notice

(2) The notice must set out

• • (a) the expected date of the relocation;
  • (b) the address of the new place of residence and contact information of the person or child, as the case may be;
  • (c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and
  • (d) any other information prescribed by the regulations.

Exception

(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence.

Application without notice

(4) An application referred to in subsection (3) may be made without notice to any other party.

AP Commentary: A relocation is a move that significantly impacts a child’s relationship with others. In these cases, formal notice is required at least 60 days before the proposed move. 

Relocation authorized

16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if

• • (a) the relocation is authorized by a court; or
  • (b) the following conditions are satisfied:
    • (i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in
      • (A) a form prescribed by the regulations, or
      • (B) an application made under subsection 16.1(1) or paragraph 17(1)(b), and
    • (ii) there is no order prohibiting the relocation.

Content of form

(2) The form must set out

• • (a) a statement that the person objects to the proposed relocation;
  • (b) the reasons for the objection;
  • (c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and
  • (d) any other information prescribed by the regulations.

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order 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.
• AP Commentary: In deciding whether to authorize the relocation or not, the court must consider the best interest of the child, including the factors listed in s.19.92(1).

Factor not to be considered

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

Burden of proof — person who intends to relocate child

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

Burden of proof — person who objects to relocation

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

Burden of proof — other cases

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

AP Commentary: The burden of proving that a relocation is in the best interest of the child depends on the parenting arrangement. That is, if it’s a shared parenting arrangement or if the child lives primarily with one parent.

If the child lives primarily with one parent, the other parent who is challenging the move has the burden of proving that the move is not in the child’s bet interest.

If the child has a shared parenting arrangement, then the party who is planning to move has the burden of showing that the move is in the child’s best interest.

Where there is no order (or in some cases if only an interim order is in place), agreement or arbitral award dealing with parenting time, each party would have to demonstrate whether the move would or wouldn’t be in the child’s best interest.

Power of court — interim order

16.94 A court may decide not to apply subsections 16.93(1) and (2) if the order referred to in those subsections is an interim order.

Costs relating to exercise of parenting time

16.95 If a court authorizes the relocation of a child of the marriage, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.

AP Commentary: A court may order that the increased cost of exercising parenting time due to a relocation such as accommodation and transportation be shared between the parties. 

Notice — persons with contact

16.96 (1) A person who has contact with a child of the marriage under a contact order shall notify, in writing, any person with parenting time or decision-making responsibility in respect of that child of their intention to change their place of residence, the date on which the change is expected to occur, the address of their new place of residence and their contact information.

Notice — significant impact

(2) If the change is likely to have a significant impact on the child’s relationship with the person, the notice shall be given at least 60 days before the change in place of residence, in the form prescribed by the regulations, and shall set out, in addition to the information required in subsection (1), a proposal as to how contact could be exercised in light of the change and any other information prescribed by the regulations.

Exception

(3) Despite subsections (1) and (2), the court may, on application, order that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or modify them, if the court is of the opinion that it is appropriate to do so, including where there is a risk of family violence.

Application without notice

(4) An application referred to in subsection (3) may be made without notice to any other party.

AP Commentary:  If a person with a contact order with a child is moving residences or relocating, they have to notify the parent(s) of the change of address except a court has waived or modified this requirement. In the case of a relocation, they will be required to provide notice using the prescribed forms and include information on how they expect to continue exercising contact give the change.