Relocation with a Child of the Marriage: Recent Judicial Treatment of the Amendments to the Divorce Act

The Divorce Act , RSC 1985, c 3 (2nd Supp) (“Divorce Act”) was amended eight months ago in March 2021. The amendments contained new provisions that apply to applications relating to relocation. Relocation is when one parent wants to move with a child - it is often a complicated issue for families. As a result, relocation applications are frequently before the court. This blog post will set out the new procedure under the Divorce Act and review the leading jurisprudence that has been released in the following eight months.

Before the amendments took effect, the leading case was the Supreme Court of Canada’s decision in Gordon v. Goertz (“Goertz”). In Goertz, the Court outlined the following two-part test:

• Did the relocation constitute a material change of circumstances?
• Once that threshold has been met, the judge then conducts a fresh inquiry into what is in the best interests of the child, with regards to the following factors:
• The existing custody arrangement and relationship between the child and the custodial parent;
• The existing access arrangement and the relationship between the child and the access parent;
• The desirability of maximizing contact between the child and both parents;
• The views of the child;
• The custodial parent’s reasons for moving are only considered in exceptional cases where it is relevant to that parent’s ability to meet the needs of the child;
• The disruption to the child of a change of custody;
• The disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

Amendments to the Divorce Act set out a three-part framework application to changes of residence and relocation:

1. Notice of a proposed change of residence or relocation

Section 16.9 requires a person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to relocate must give at least 60 days’ notice in the form prescribed by the regulations.

2. Additional best interests criteria to consider on relocation applications

Section 16.92(1) sets out additional factors relating to the best interests of the child to be considered on relocation applications, including:

• the reasons for the relocation;
• the impact of the relocation on the child;
• the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
• whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
• the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
• whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

3. Burdens of proof in three scenarios

1. Where the parents have substantially equal time caring for the child under an order, award, or agreement, the party who intends to relocate has the burden of proving that the relocation would be in the best interests of the child (section 16.93(1));
2. Where the child spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child (section 16.93(2)); and
4. In other cases, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

Recent Cases

K.P. v. S.K., 2021 BCSC 1426

The mother sought a court order authorizing her to relocate the children of the marriage to Alberta where the parties previously lived. The children were relatively young, and the mother was the primary parent.Kirchner J. observed that, pursuant to section 16 of the Divorce Act, the test is what is in the best interests of the children. Subsection 16(2) states that the primary consideration is “the child’s physical, emotional and psychological safety, security and well-being.” The best interests of the child is the lens from which all the factors listed in s. 16(3) and s. 16.92(1), which apply specifically to relocations, are to be considered (para 87).Kirchner J. considered the additional best interests criteria laid out in ss. 16.92 of the Divorce Act. Kirchner J. considered (a) through (c) together (para 118). The mother’s reason to move was to pursue a new career with the support of a strong network of family and friends. The mother did not have any family network in British Columbia.The circumstances in Alberta were found to be beneficial to the children (para 120). Although Kirchner J. agreed that no amount of extended family can replace the children’s connection with their father, the consideration of the maximum contact principle cannot “overwhelm the analysis” if the children’s best interest lies in staying with the mother in Alberta (paras 121-122). The mother had been the primary caregiver of the children and equal parenting was not in the best interests of the children at this stage (para 123).Although the mother did not follow the formal notice requirements under the new provisions, Kirchner J. held that no prejudice resulted from the lack of formal notice under s. 16.9 and it would not be in the children’s best interests to permit this factor to prevent a move that was otherwise in their best interests (para 126).Finally, the mother’s proposal of the father having at least four weeks of parenting time plus long weekends was reasonable (para 128). Kirchner J. concluded that it was in the best interests of the children to relocate.

Joseph v. Washington, 2021 BCSC 2014

The mother sought an order to relocate with her children to Brooklyn from Victoria, British Columbia. Justice Warren observed that s. 16.92(2) of the Divorce Act precludes consideration of what the parent seeking to relocate would do in the event that he or she was not permitted to relocate. However, the law is unclear of whether the court could consider what the respondent parent would do if the relocation was permitted. Justice Warren declined to make a definitive finding of the meaning of s. 16.92(2) (paras 101-111).After a detailed consideration of the factors enumerated in sections 16(3) and s. 16.92(1), Justice Warren concluded that the enhanced emotional stability and increased opportunities to nurture their racial and cultural identities that will inure to the children’s benefit if they return to New York weighed heavily in favour of permitting the relocation. The children did not have deep roots in Victoria. The father would move with the children, so it would impact the time they spend with their father or the quality of their relationship with him. Justice Warren found that the proposed relocation to Brooklyn was in the children’s best interests (paras 190-191).

Al Kowatli v. Berrwin, 2021 ONSC 4999

In this case, the mother sought permission to relocate with her child to Lebanon. Mills J. made two significant observations about the recent amendments to the Divorce Act. Firstly, the legislation appeared to now set out a complete guide for the court to follow when faced with relocation applications, which replaced the common law test set out in Goertz (para 17).Secondly, Mills J. noted that the legislative framework failed to state whether there must first be a change of circumstances before the provisions of s. 16.9 and s. 16.92 are to be considered. Mills J. found that the parent seeking the order does not need to demonstrate and the court does not need to satisfy itself there has been a change in the circumstances of the child beyond the proposed relocation (paras 18-20).Mills J. considered the factors in detail and found that it was not in the best interests of the child to move to Lebanon. Mills J. relied on the fact that there was a poorly defined parenting plan and the impact the relocation would have on the child significantly weighed against the relocation. The safety and security risks were considered. Further, the lack of any specifics with respect to how the father would be permitted to meaningfully engage in parenting time with the child was not reasonable and not in the child’s best interests (paras 80-83).

Waite v. Waite, 2021 PESC 12

The parties resided in Prince Edward Island, where their one child was born. The mother sought authorization to relocate their child to British Columbia with their child.Since there was no order, award, or agreement in place, the parties equally bore the burden of proving whether the relocation was in Elizabeth’s best interests pursuant to s. 16.93(1) of the Divorce Act (para 448).After reviewing the factors set out in s. 16 and s. 16.92 of the Divorce Act, the Court was satisfied that it was in the child’s best interests to relocate to British Columbia. Although the plan would reduce the father’s parenting time, it would present the daughter the opportunity to gain a great deal. The court considered the mother’s isolation and mental health challenges in PEI and the increased support she would have in British Columbia (paras 449-450).