One thing is certain: relocation cases are some of the most heart-wrenching cases Quebec courts have to rule on. When joint custody is no longer possible, consideration is given to the following factors: to the moral, intellectual, emotional and physical needs of the child, the child’s age, their health, their personality, and their family environment. Ensuring the stability of the child is the most important thing.
The routine and status quo of the child is something courts try their very best to preserve, even in light of the requested change. There is a constant tug of war between the importance of mobility and personal or family motives of a parent who wants to relocate and the potential effects that a move will have on the relationship of the child with the other parent. When making these difficult decisions, the court must always focus on what is in the best interest of the child.
Another important criteria considered by the court is which parent will do more to maintain the child’s relationship with their other parent.
New Divorce Act
Article 16.8 and following of the new Divorce Act sets in place new legislation for relocation. The new Divorce Act was supposed to come into effect on July 1, 2020 but it has been delayed until March 2021 to the Covid-19 pandemic.
Who does the new Divorce Act apply to?
There is a debate as to whether these new laws about relocation apply only to those instituting divorce proceedings or to all separated parents, we will have to wait and see how the courts apply it.
In the new Divorce Act, the legislator has created three new regimes with respect to relocation:
1) Change of residence of a parent who has parental time (custody)
2) Relocation of a parent who has parental time (custody)
3) Change of residence of a parent who has contact with child (access)
The parent who wants to change their residence will have now have certain rights and obligations by law. The rights and obligations will differ based on whether the relocation is minor or significant.
The new article 2(1) Divorce Act defines a relocation as follows:
relocation (déménagement)means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with:
- (a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
- (b) a person who has contact with the child under a contact order;
This implies that a change of residence is a move that does not correspond to the definition of a relocation.
Obligation to give notice to the other parent
Under the new Divorce Act, a parent who is planning to change residence has the obligation to give notice to the other parent. This is a change from Article 16(7) of the current Divorce Act which states that the court can include in an order that a parent who has custody must inform the other parent that he/she is planning to move.
Under the new law, the obligation to give notice to the other parent of a move, exists whether it is a minor change of residence or a relocation. The conditions of the notice differ depending on the significance of the move.
1. Change of residence – minor move
i. Obligation to notify the other parent of a change of residence (Article 16.8 (1))
A parent who has parenting time or parental authority of their child and who wants to move has the obligation to advise the other parent, regardless of whether that parent has parenting time(custody), access or simply parental authority. In Quebec, all parents have parental authority, regardless of parenting time, unless their parental authority has been explicitly withdrawn by the courts.
The notice must be given in writing, it must include the date of the desired move and the new address and contact information (Article 16.9(2)) There is no deadline specified in the article therefore it is implied that the notice must be given a reasonable amount of time before the move.
It is also important to note that a parent can ask the court to be absolved of this obligation when there is a risk to divulging their address and contact information due to domestic violence (Article 16.8(3)). The other parent would not have to be formally notified of this application to the court.
2. Relocation – significant move
i. Obligation to notify the other parent of a change of residence (Article 16.9 (1))
For a significant move, the “moving parent” must advise the other parent, regardless of whether that parent has parenting time (custody), access or simply parental authority, 60 days before the move and the notice must include the following:
- a. The date of the proposed move;
- b. Their new address and contact information; and
- c. A proposal for a revised parenting time (custody) schedule, decision-making, and/or access.
Like with a minor move, a parent can ask the court to be absolved of this obligation when there is a risk to divulging their address and contact information due to domestic violence. In this case, it goes without saying that the parent wanting to relocate would present a formal Application for Authorization to Relocate with their Application to be absolved of the obligation to notify the other parent of the address they are moving to.
ii. Authorization to relocate
As soon as the new law comes into force, a parent will not be able to move without following the new guidelines.
A parent will only be given authorization to move if the following conditions are met:
1. That they receive permission from the court (Art 16.91(1)(a))
2. That the person who received the notice of relocation does not contest it within 30 days of reception (art 16.91(1)(b)(i)) by either using the applicable form (art. 16.91 (1)(b)(i)(A) or by presenting their own Application in virtue of Art 16.1(1) or 17(1)b)
3. There is no court order prohibiting the move (Art 16.91(1)(b)(ii)
iii. Judicial Authorization to relocate
Factors the court will consider
The court must consider whether it is in the child’s best interest to relocate based on the factors in Article 16 as well as those in Article 16.92, which are as follows:
- 1. Reasons for relocation
- 2. Effect of relocation on the child
- 3. Amount of time the child spends with the parent who is not relocating and the degree of that parents involvement in the child’s life
- 4. The existence or non-existence of the notice to relocate
- 5. The existence or the non-existence of an order or agreement which stipulates the geographical area where a child must live
- 6. Whether or not the rearrangement of the non-custodial parents time with the child is reasonable or not based on the proposed relocation
- 7. Whether or not the non-custodial parent has respected their parental rights and taken full advantage of their time with the child to date
The factors enumerated above largely correlate with the criteria mentioned in the monumental case law of Gordon v. Goertz.
A factor the court will not consider based on article 16.92(2) is whether or not the parent would move without the child should the court prohibit the child’s relocation.
Burden to show why relocation is or is not in best interest of the child
If the case of a shared custody (where each parent has at least 40% of the time with the child), the burden is on the parent who is moving to demonstrate that the relocation is in the child’s best interest.
Based on Article 16.92 (2), if one of the parents has exclusive custody (more than 60% of the time with the child), the burden is then reversed and falls on the non-custodial parent to show why they are opposed to the relocation and why it is not in the child’s best interest. This is the most significant change to the law.
Another change is that based on Article 16.95, the parent who is relocating may be ordered to share the cost of travel and/or lodging of the non-custodial parent in order to exercise their access with the child.
If you have any specific questions with respect to a possible relocation, please call us to book a consultation.