KITCHENER FAMILY LAW LAWYERS WITH OVER 40 YEARS OF FIRM EXPERIENCE ASSISTING CLIENTS WITH ISSUES AFFECTING MOBILITY, CHANGES TO RESIDENCE, & RELOCATION OF CHILDREN
What happens when one parent wishes to relocate to a new area with the children? This area of family law is one of the most complex areas in any case, especially when the proposed relocation will inevitably affect the decision-making and parenting rights of the non-relocating parent. Disputes frequently occur when the proposed distance of relocation negatively affects the other parent’s ability to exercise access.
What are the required steps in changes to residence and relocation?
Success in relocating away from a municipality where one parent resides to another is often very difficult to attain. Historically, the court reviews several factors in determining whether to allow a parent to relocate, including the distance of the proposed move, the reason for the move, and the impact that the move may have on the children’s relationship with the non-moving parent in applying the guiding principle of the best interests of the child.
As of March 1, 2021, there will now be a new framework to review changes in residence and relocation in the Divorce Act, which includes written notice of changes to residence and relocations between the spouses/parents. There is now an expanded view of the best interests of the child criteria for the court to consider, and establishes clear directions and burdens of proof in certain situations. There are exceptions to this rule of notice requirements in situations where there is a risk of family violence and a spouse/parent obtains a court order that notice of a change to a child's residence is waived or modified to provide limited information. In these circumstances, a party can bring an application to the court without the other spouse's knowledge.
"Relocation" has been added as a new term and now refers to a change in residence of the child or person who has parenting time or decision-making responsibility that is likely to have a significant impact on the child's relationship with a person who has:
Once a Notice of Relocation is provided to the affected individuals, those parties will have 30 days to object, which objection shall include:
(a) A written statement that the person objects to the proposed relocation;
(b) The reasons for the objection;
(c) The views of the person for the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and
(d) Any other information prescribed by the regulations.
If no objection is received with the 30 days of the party giving notice of the relocation the party and the child may relocate provided that there is no existing court order that prohibits the relocation. The burden of proof will be on the party seeking to relocate with the child in circumstances where the child is living with both parents. In circumstances, where the party seeking to relocate has the child in their care the majority of the time, the burden of proof will be on the party objecting to the relocation to prove that the relocation would not be in the best interests of the child.
The best interests of the child expanded in context to relocation
Courts will now be required to order parenting time to each parent based on the child's best interests. The best interests criteria will help the court to tailor parenting arrangements for each child's specific situation. The best interests of the child test has been expanded in the context of the relocation such that a court in reviewing the issue will now have to consider the following:
If you are facing residency and relocation issues that requires the expertise of highly skilled family law lawyers, we invite you to contact our firm for a consultation. We can assist you in seeking a residence and relocation variance or to respond to such a request from the other parent.
For over 40 years, clients have trusted in our ability to explain more than simply their legal rights and obligations in a separation or a divorce. We focus on sustainable collaboration that leads to creative solutions and enduring dispute resolution. There are few family law problems that we have not previously assisted clients in resolving. We are confident that you will appreciate our professionalism and personalized service. To benefit from our knowledge and experience with respect to mobility, changes to residence, and relocation as part of your separation or divorce, or after a divorce has been finalized, please contact 519-884-0034 or send us an email. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants, and financial advisors. We serve clients in Kitchener, Waterloo, Cambridge, Guelph, Stratford, Hamilton, London and surrounding areas.
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