Relocation – Part II

Burden of Proof:

The burden of proof is the legal standard to determine if relocation is in the child’s best interests. Depending on the circumstances, the burden of proof lies with differing parties:

1. Child is with either parent on an equal basis (with each parent at least 40-50% of the time)

• Section 16.93(1) of the Divorce Act outlines that if the parties have equal parenting time pursuant to an order, arbitral award, or agreement, the person who wants to relocate has the burden of proof showing that the move would be in the best interests of the child.

2. Child is with one parent the majority of the time

• If the relocating parent spends most of the time with the child, then relocation can occur, unless the other parent objects to the relocation. In this case, the person who objects to the relocation has the burden of proof to show that the move is in the best interests of the child.

3. Cases not listed above (ex: relocation is interim, order is interim, there is no agreement)

• In these other cases, parents each have the burden to show whether relocating is in the best interest of the child.

The above analysis applies specifically according to legislation where the parties have an order, arbitral award, or agreement. In these cases, the court, arbitrator, or parties have determined what's in the best interests of the child and now request a departure from those living arrangements.

Child’s Best Interests:

To assess the child’s best interests, there are general and particular questions relating to the relocation to be considered.

Relocation Particular Questions (s 16.92(1) Divorce Act):

1. What are the grounds for relocation? (ex: new employment, be closer to extended family, improved housing conditions, etc.)
2. What is the influence of the relocation on the child? (ex: lost time with the parent who is left behind)
3. What is each parent’s involvement and parenting time with the child?
4. Compliance with Notice of Relocation
5. Are there any geographical barriers involved? (ex: orders preventing the relocating parent moving to a specific geographical region)
6. Reasonableness of the proposal (How will the relocation affect the child’s friendships, schooling, or extracurricular activities?)
7. Compliance with family law obligations (ex: Is the non relocating parent contributing to spousal/child support, and are both parents following any court agreements and orders?)

General Best Interest Considerations (s 16(2) and 16(3) Divorce Act) include:

1. Court gives primary consideration to the child's physical and emotional safety and well-being;
2. The child’s needs, given their age and development;
3. Parent's willingness to support the child's bond with the other parent;
4. History of the child's care;
5. The child’s perspective and preferences;
6. The child’s religious and cultural beliefs;
7. Plan for the child's care; and,
8. Family violence and its impact.