Relocating with Children after Separation
It’s always best to get legal advice about your particular situation, and rarely is that more true than with the issue of relocating with your children after separation. If you need advice, you can book a free 20 minute consult with an Atticus Legal family lawyer by clicking here.
First, what is relocation? In broad terms, relocation is any change in residence that is likely to have a significant impact on the other parent’s parenting time or relationship with the child. For example, moving down the street would obviously not be a “relocation”, whereas moving to another country certainly would be. With most things, there isn’t hard cut-off of distance that determines if a move is a relocation: it’s something the courts will look at on a case-by-case basis.
Relocating with your children after separation is one of the more complex family law issues. Both legislation and case law have changed significantly more than once over the last decade. Despite these attempts by the legislature and judiciary to properly articulate the matter, the law is still not completely clear on how exactly this issue ought to be handled. I give a very high-level overview of the legislative scheme below - warning, it’s rather complex and not completely coherent - but I’ll mention here what I see as three fundamental principles of the law for most relocation situations: 1) ample, detailed notice to the other party with 2) an opportunity to object and discuss, and 3) the final determination of any unresolved disputes in the court, with a consideration of the best interests of the children as paramount.
Before turning to the courts, it is usually best practice to try to first come to agreement with the other guardian. Approach the issue in good faith: explain the reasoning for the proposed move, discuss how you will maintain the other parent’s relationship with the children. It is not uncommon for the court to order a relocating parent to pay part of the costs the other parent has to incur to maintain their relationship, so you may wish to consider monetary aspects in your negotiations.
As for the legislation, explaining the entire statutory scheme for relocation is beyond the scope of a short blog and, to be perfectly honest, they don’t exactly form a cohesive whole. For starters, you will have to determine if the Family Law Act or Divorce Act applies in your particular case. Then there are cases where you could apply either statute. Three different potential paths and we are literally just at the door.
In the Family Law Act there are two separate frameworks for dealing with relocation: one where there there is an order or agreement about parenting, and the other where there is no such order or agreement. In the former situation, the Act sets out a detailed scheme for formal notice of the relocation, and a requirement of the non-relocating party to apply if they oppose the move. If they do apply to oppose the move, the Act has two further sub-categories depending on if you have substantially equal parenting time or not, with each creating different burdens of proof on the litigants.
In the Divorce Act, changes in 2021 brought in new notice provisions, similar to the FLA but with key differences. For one, the Divorce Act does not appear to require the non-relocating parent to apply to oppose the relocation, but instead provides a notice of objection form that the non-relocating parent can serve on the parent who proposed the relocation. I say it does not “appear” to require an application, because - as I keep saying - the legislation is not very clear on what the effect of serving the notice of objection is. The Act says that if you don’t serve the notice of objection the other party may relocate (assuming a few other conditions), but the Act says nothing about what happens when you do serve the notice of objection. Is the other parent barred from relocating? Nobody knows.
Likewise, the Divorce Act, like the Family Law Act, is (almost) silent on what happens to a relocating parent if they don’t provide notice of the proposed relocation. Are they barred from relocating? Nobody knows.
The Divorce Act further differs from the FLA by having three classes of “presumptions” about whether or not a proposed relocation is in a child’s best interest, whereas the FLA only has two. Talk about confusing!
As convoluted and incomplete as much of the legislative scheme is on relocation, the courts are able to make their way through it as, ultimately, all roads lead to an analysis of the best interests of the children. This means talking about how the lives of the children will be in the proposed new location as compared to their old one, including all the relevant factors set out in the statutes. As you might expect by the profusion of legislative language on relocation, the factors in the two Acts are are also distinct, even though they are similiar,, so your analysis and argument is going to be slightly different depending on which Act applies. And if it’s ambiguous which Act applies? be prepared for arguing some 20+ different “best-interest’ factors. Yes, it’s quite a mess.
Even though the law on relocation is complicated and often involves difficult litigation, you are ill-advised to try to simply bypass the fundamental legislative principles of the process (notice, opportunity to object, court resolution, best interests of the child). Skipping these principles cannot only seriously tick off the court and land you in hot water in family court, there are circumstances where your actions could actually be criminal - a crime that prosecutors take very seriously. There are very rare cases where a parent could move while not strictly following the above-principles - usually involving family violence - and even then the move is fraught with legal risk.
So, to sum it up, the old truism that you should get legal advice about your family law issue isn’t simply a truism when it comes to relocation: this is one complex area that you really should work out with a lawyer.
