Proposed Changes to the Divorce Act on Relocation – Vancouver Family Lawyers

Vancouver Family Lawyers are here to explain how the recent changes to the Divorce Act will impact your ability to relocate with your child. The Canadian Research Institute for Law and the Family surveyed lawyers and judges and over 98% of participants indicated that disputes involving issues regarding relocation are different to resolve.

Bill C-78 has received Royal Assent on June 21, 2019. What this means for families across the country is that they need to be aware of a complete overhaul of the federal divorce legislation. This blog will only focus on the changes to the Divorce Act regarding the issue of relocation.

Prior to the recent changes to the Divorce Act in 2019, there were no specific provisions on relocation in the Divorce Act. The issue of relocation would involve the application of the two-step test set out in Gordon v. Goertz, [1996] 2 SCR 27:

  • The applicant must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
  • If the threshold is met, the applicant must establish that the proposed move is in the best interests of the child, given all the relevant circumstances for the child’s needs and the ability of the respective parents to satisfy them.

However, Vancouver Family Lawyers note that the test set out in the Gordon v. Goertz decision leaves many gaps such as issues related to notice of a move, or who must bring an application seeking relocation orders in advance of the move. Fortunately for British Columbians, the existing Division 6 of the Family Law Act, fills in some gaps on the issues of relocation.

In essence Bill C-78 expands an already existing framework regarding relocation of children in BC. To elaborate the Divorce Act will include three broad components:

  • Notice of a proposed change of residence or relocation;
  • Additional best interests criteria for relocation cases; and
  • Burdens of proof that would apply in certain relocation cases.

Notice

Pursuant to section 66 of the Family Law Act a child’s guardian who plans to relocate must give to all other guardians having contact with the child at least 60 days’ written notice, as well as, the date of the relocation and the name of the proposed location.

The changes stipulated in the Divorce Act will further read that a party who wishes to relocate must also include a proposal about how the parenting arrangements could be changed.

Objection

Pursuant to section 68 of the Family Law Act, if a child’s guardian gives notice that he or she plans to relocate with or without the child, the relocation may occur unless another guardian of the child, within 30 days of receiving the notice, filed an application for an order to prohibit the relocation.

Unlike the Family Law Act, under the proposed changes to the Divorce Act, the parties will have an obligation to resolve matters outside the court, and only after the parties are unable to come to an agreement, an objecting party may file an objection with the court.

Additional best interests criteria in relocation

Section 69(5) of the Family Law Act already sets out an additional bests interests criteria that needs to be considered when a guardian brings an application for relocation. For greater certainty, Bill C-78 proposes seven criteria to be considered in all relocation cases:

  1. Reasons for the relocation;
  2. Impact of the relocation;
  3. Amount of time spent with the child by each person who has parenting time;
  4. Whether notice was provided;
  5. Orders or agreements specifying geographic area;
  6. Reasonableness of the proposal; and
  7. Compliance with family law obligations.

None of the above-noted factors are determinative.

Burdens of proof

Bill C-78 outlines specific burdens of proof in order to assist parents, lawyers and judges in determining whether relocation is in the best interests of the child.

  1. Equal time

“If parents spend substantially equal time with the child and share responsibility for the care of the child fairly equally, the person proposing the move would have to demonstrate why the move is in the best interests of the child.”

  • Unequal time

“If one parent clearly has primary responsibility for the care of the child – that is, the child is in the care of that parent the vast majority of the time – the parent opposing the move would have to demonstrate why the move is not in the child’s best interests.”

If you or someone you know needs helps understanding the implications of the changes to the Divorce Act on their rights and obligations to their spouses or children, our Vancouver Family Lawyers can help you understand. Call us at 604.264.5550.

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