Category: Relocation

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...

The rules to relocate changed in March, 2021. Statute and Stage of Case: When approaching relocation, one should consider which legislation (or set of laws) apply. The Divorce Act or the Children's Law Act may apply. This depends on whether the parties were married. Parties should also consider the stage of the matter: Is the move requested interim/temporary. This relief is not often awarded by the courts as it would likely dispose of the issue; Does the relocation relate to an initial application? Or, is this a variation proceeding? Giving Notice: According to Section 16.9 of the Divorce Act, when a spouse wishes to relocate with the child(ren) or without, they must give written notice at least 60 days before the relocation. The notice of proposed relocation is the initial step for relocation to occur. Individuals must give this notice in the prescribed form to all individuals that have a contact order (ex: grandparents), parenting time, or decision-making responsibility for the child. The notice must have specified information, including: The date the relocation will occur; Contact information and the address of the new place of residence; and, A proposal to individuals that have a contact order, parenting time, or decision-making responsibility...