Legislative Scheme of Relocation

The Legislative Scheme and Written Notice Requirements

Legislative Scheme of Relocation

Change in Residence or Relocation of a Child:  The Legislative Scheme and Written Notice Requirements

There have been comprehensive and sweeping legislative reforms that now require all parents to give written notice of any change in residence or if they wish to relocate with their child(ren).  The requirements for non-married parents are set forth in Sections 39.1, 39.2, 39.3, and 39.4 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12.  Sections 16.8 and 16.9 to 16.96 of the Divorce Act, R.S.C. 1985, provides the legislative notice requirements for parents who are changing residences or seeking to relocate with their child)ren) for those parents who were married and not yet divorced.  In effect, the requirements set forth in the Childrens’ Law Reform Act and the Divorce Act are similar, yet there are subtle differences.

If a parent seeks to relocate with their child(ren), then the relocating parent must provide the non-relocating parent with at least 60 days written notice of the relocation and the written notice must contain the information required by the applicable legislation including but not limited to the address of the intended relocation, the date of the expected relocation, the relocating parents new contact information, and a proposed plan for parental decision-making and parenting time.  The non-relocating parent will then have 30 days to object to the proposed relocation.  If a non-relocating parent does not agree wit with the proposed relocation of the child)ren), then it is imperative that the objection is served within the time limits set out in the legislation (i.e., 30 days from being served with the relocating parents written notice).

However, Sections 16.8(3) and (4) and Sections 16.9(3) and (4) of the Divorce Act authorize the court to dispense with the notice requirement in certain circumstances “including if there is a risk of family violence.  Similarly, Section 39.3 (3) of the Children’s Law Reform Act also provides the Court the ability to dispense with the relocation notice requirement in appropriate circumstances including if there is family violence.  

One such case where the Court exercised its jurisdiction to dispense with the written notice requirements was in the case of A. J. K. v. J. P. B., [2022], , 2022 CarswellMan 74 [Q.B.].  In that case, the father and mother separated in 2015.  They had two (2) children of their marriage.  The mother had primary care of the children.  Post separation, the father engaged in threatening behaviour towards the mother.  The mother successfully applied for a restraining order in 2017.  The restraining order was extended for 3 years in 2019.  Despite the restraining orders, the father’s threats and frightening behaviour towards the mother continued.  In August 2021, the mother brought an emergency motion without notice to the father.  As such, this was a case where the relocating party did not comply with the requirement of written notice.  The Court was, therefore, forced to determine whether it was appropriate to dispense with the written notice requirements in these circumstances.

Before getting to the outcome of the decision, it is worth noting that the mother was the primary care parent to the children.  This is significant because, under the relocation legislation, if the relocating parent is the primary care parent, then the onus shifts to the non-relocating parent  to prove that the relocation is not in the best interests of the children.  However, the A. J. K. case was peculiar in that it was heard as a without notice motion.  The Court exercised its discretion to decide that the mother would have to prove that the move was in the best interests of the children, thereby placing the onus on her.

Despite the onus being on the mother to prove that the move was in the best interests of the children, the Court ruled in favour of the mother’s relocation.

In relocation cases, the stakes are high and the legal issues are complex.

If you find yourself on either side of a relocation issue, you are well advised to seek legal advice from a qualified family lawyer.

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