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Determining when relocation is right

Proposed amendments to the Divorce Act are a step in the right direction. But lawmakers must still confront some thorny issues about relocation.

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Courts have struggled for years in deciding relocation cases. Volumes have been written about the need for legislative reform in this area. Bill C-78, which would amend the Divorce Act, provides a positive step forward. Commendably, it adopts a child's-best-interests approach which is consistent with the overall theme of proposed amendments in the bill. 

But it also has problems that need to be addressed – for example, through notification provisions that put the receiving party at a significant disadvantage.

One parent’s relocation can upset the balance sought by court orders addressing parenting time, decision-making or contact. Under Bill C-78, a party with parenting time or decision-making responsibility wishing to relocate must give 60 days' notice to the other – dates, addresses and contact points, as well as a proposal for how parenting time, decision-making, or contact could be exercised. The other parent then has just 30 days to consider the information, and file a formal objection – a too-narrow window, especially in communities where it is difficult to hire counsel. And if that parent doesn’t manage to get it all done in time, the relocation can go ahead unless a court prohibits it.

These short timeframes will almost certainly mean further litigation, as parties will not have the time to engage in mediation or other forms of dispute resolution contemplated elsewhere in the bill. Instead, they will have to retain counsel, voice their opposition, and file court proceedings.

What’s more, if one party relocates because the other defaults – either doesn’t respond, or fails to respond in time – there’s no guarantee the resulting move would be in the best interests of the child. The outcome could be unfair for both the child and the non-relocating parent.

More notice of an intention to relocate and respond would improve the chance that planning would focus on the child, and encourage  the use of family dispute resolution processes.  After all, in most cases, the relocating parent has planned the move for months or longer.

It would also be helpful to require a party to indicate in a standard notice whether they are consenting to the relocation plan or contesting it.  If the response (or lack thereof) were to be recorded in a registry for notices, it would support a desk variation order permitting the relocation.

This would not only be cost-effective, it would be consistent with access-to-justice objectives which presuppose the fair, consistent, and ordered administration of justice that is easier to access. 

Another suggestion would be to require the moving party to file their relocation request in court, together with proof that the other party has been informed and that party’s response – or a sworn statement that there has been no response.  In the absence of an objection, the relocating person would then be entitled to an order allowing relocation. This would put the initial responsibility on the relocating party, unless a court was to order otherwise.

Getting a variation order (instead of relocating based on "no response") would ensure that there is no confusion about the provisions of the previous order for schools, doctors, and others providing services for the child in the new location.

Bill C-78 also prohibits the courts from considering the double-bind question – whether the person wishing to relocate with the child would relocate without the child if the child's relocation were prohibited.

However, there may be circumstances where it is appropriate in for the court to consider the issue and give it proper weight.

One of the essential features of the bill addresses the burden of proof provisions. This helps provide a useful framework for parties, lawyers, and the courts, but there are potential pitfalls in the wording of the section.  Setting up a framework is challenging given the many variables and moving parts that might come into play in these cases. 

Where relocation puts a healthy child/parent attachment at risk, the onus should be on the moving parent to show that the move is in the child's best interests.  Conversely, where a child does not have a close attachment with a parental figure, for whatever reason, and the parent figure to whom the child has a healthy attachment wants to relocate, the person opposing the relocation should have to prove that the relocation would not be in the child's best interest.

The challenge is in putting those best-interest principles in easy-to-understand and certain legislative form.  The bill suggests that the onus is on the relocating parent only where the parties have "substantially equal time."  But some children have strong attachments to parents with whom they spend less than equal time. Arbitrary time calculations are not necessarily the best guide.

We are pleased that the Bill that has gone through Committee has incorporated changes to the form of notice. It remains to be seen what details the Regulations will include. Relocation provisions should always have the goal of maintaining strong and healthy attachments between children and parents to provide them with stability and certainty.  Ultimately, changes to existing parenting regimes that follow from relocation should not happen without careful consideration of the child's best interests in an environment of decreased conflict.