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Divorce and Distance: A Canadian Parent's Guide to Relocation

Updated: Feb 21



father unrolling a carpet with his toddler son in their new home

In the wake of a divorce, the decision to relocate is not merely a change of address; it’s a pivotal moment that can redefine the future of a family. For divorced parents in Canada, moving with children is not just a logistical challenge but a legal labyrinth, intricately woven with emotional threads. This guide aims to shed light on the complexities of relocation under Canadian Family Law, providing clarity and direction to those standing at this crossroads.


When the dust of the divorce proceedings settles, the notion of relocation often surfaces, presenting a new set of challenges. The decision to move, whether in pursuit of a fresh start, closer proximity to extended family, or better opportunities, carries weighty legal considerations and profound emotional implications. It's a journey that requires careful navigation, balancing the legal mandates with the emotional wellbeing of all involved – especially the children, whose lives are deeply impacted by these decisions.


The Legal Framework of Relocating Post-Divorce


In the landscape of Canadian Family Law, the act of relocating with children post-divorce is akin to navigating through a dense fog, where each step must be taken with precision and awareness of the legal boundaries. The Divorce Act, a beacon in this fog, offers clarity and direction, laying out the guidelines that parents must adhere to when considering such a significant move.


A relocation isn't merely a change of address; it's a shift that can ripple through the family, altering schedules, lifestyles, and the delicate balance of parental involvement. Recognizing the magnitude of this decision, the Divorce Act distinguishes between "relocation" and a mere "change of residence." This distinction is paramount, as the nature of the move dictates the procedural path a parent must follow.


A "relocation" is defined as a move that will significantly impact the child's relationships, particularly with the parent who isn't moving. It's a term that encapsulates not just the physical distance but the emotional space that might grow between a child and their parent. In contrast, a "change of residence" is a move within the same city or area that doesn't disrupt the child's routine or their relationship with either parent.


For parents pondering relocation, the Divorce Act mandates a notice, a written declaration of intent delivered to the other parent. This notice isn't merely an administrative formality; it's a thread in the fabric of co-parenting, a gesture of respect and consideration. The notice must detail the proposed move, the new address, and most importantly, a thoughtful proposal on how parenting time and decision-making responsibilities will be restructured post-move.


Interim Relocation and Wrongful Removal


In the aftermath of separation or divorce, 'interim relocation' arises as a term encapsulating the temporary and potentially reversible move of a parent with their child, undertaken before the final settlement of parenting arrangements. It's a period marked by transition, where the permanence of decisions is yet to be solidified by legal agreements or court orders. This phase is crucial, as it sets the precedent for the future living arrangements of the child, balancing the immediate needs against the long-term best interests.


However, as the tides of life shift, so do the circumstances of families post-divorce. Interim relocation emerges as a beacon for some, seeking solace or new beginnings, yet it remains one of the most precarious steps a parent can tread. The courts, guardians of balance and fairness, approach these cases with a profound sense of caution. It is not enough to claim the role of the primary parent during the relationship; the law requires a clear, unequivocal consensus or a judicial nod. Any move undertaken without this legal blessing is not just frowned upon; it is considered a wrongful removal, a direct challenge to the fabric of co-parenting and the child's stability.


Wrongful removal is not merely a breach of trust between parents; it's a legal transgression that can upend the lives of all involved. The courts, in their pursuit to protect the best interests of the child, may mandate a return to the status quo, undoing the move and restoring the delicate balance of the child's life. This stern approach underscores the gravity of relocation decisions and the paramount importance of adhering to legal protocols and respecting the rights of all guardians.


The Court's Decision-Making Process in Divorce


The court stands as the arbiter of a family's future, especially when it comes to the relocation of children post-divorce. Each case is a tapestry of unique circumstances, woven with threads of legal principles, parental intentions, and, most importantly, the child's wellbeing. In this intricate process, the court's primary compass is the best interests of the child, a principle that guides every decision and illuminates the path to a fair resolution.


Imagine a scenario where a mother, post-divorce, plans to relocate with her child to another province for a job opportunity that promises a better standard of living. She believes this move is not just a leap towards financial stability but also a step towards emotional renewal for both her and her child. However, the father objects, fearing the distance will strain his relationship with his child and disrupt the child's life.


In this delicate dance of interests and rights, the court steps in, not just as a decision-maker, but as a guardian of the child's future. It meticulously examines every facet of the situation: the reasons for relocation, the potential impact on the child, the child's own views if appropriate, the history of caregiving, and the ability of each parent to foster the child's relationship with the other parent. The court's inquiry is thorough, seeking not just facts but also understanding the emotional undercurrents that run deep within the family dynamics.


Avoiding Relocation Disputes During Divorce


The path to relocating with children post-divorce is often strewn with potential conflicts, yet it also offers a chance for cooperation and mutual understanding. Avoiding relocation disputes is not just about adhering to legal formalities; it's about engaging in a dialogue that acknowledges the intertwined futures of both parents and their child. It's in this spirit of collaboration that disputes can be preempted and resolved, paving the way for a transition that respects the rights and addresses the concerns of all parties involved.


Consider a scenario where a father contemplates moving to another city with his child. Instead of unilaterally deciding, he initiates a conversation with the mother. They sit across the table, not as adversaries, but as partners in parenting, each voicing their hopes and apprehensions. This dialogue is the first step towards understanding, a bridge over the turbulent waters of potential conflict.


In these discussions, the focus remains steadfast on the child's best interests. Proposals for new parenting time arrangements, decision-making responsibilities, and even creative solutions for maintaining a strong bond with the non-relocating parent are explored. It's a negotiation conducted not in the shadow of the court, but in the light of mutual respect and a

shared commitment to the child's wellbeing.




Legal Precedents: Gordon v Goertz and Barendregt v Grebliunas


Gordon v Goertz (1996)

In the landmark case of Gordon v Goertz, the core issue revolved around a mother's request to relocate with her child to Australia following her divorce. The father objected, concerned about maintaining a meaningful relationship with his child across such a vast distance. The Supreme Court of Canada emphasized the child's best interests, establishing a framework for future relocation cases.


The court decided that the parent proposing the relocation must demonstrate that it would serve the child's best interests. The decision underscored the importance of considering the child's established relationships, the proposed new living arrangement, and the reasoning behind the move. In this case, the mother was ultimately granted permission to relocate, setting a precedent for a thorough and child-focused approach in similar disputes.


Barendregt v Grebliunas (2022)

In Barendregt v Grebliunas, the conflict centered around a mother's desire to relocate with her children from Alberta to British Columbia, citing a better support system and improved life quality. The father objected, stressing the disruption it would cause in the children's lives and his relationship with them. The Supreme Court of Canada, upholding the principles laid out in Gordon v Goertz, delved deeply into the specifics of the case. The court reiterated the significance of prioritizing the children's best interests and maintaining stability in their lives. The decision was intricate, reflecting the delicate balance between the benefits of the proposed relocation and the potential impact on the children's relationship with the non-relocating parent. Ultimately, the court's decision leaned towards maintaining the children's stability and keeping them in place, demonstrating the nuanced and case-specific nature of such judgments.


Conclusion


The journey of relocating with children post-divorce is paved with legal intricacies, emotional complexities, and profound decisions that shape the future of families. As we've navigated through the legal framework, the significance of interim relocation, and the paramount role of the court's decision-making process, it's evident that each step in this journey demands careful consideration and informed decision-making.


The precedents set by cases like Gordon v Goertz and Barendregt v Grebliunas highlight the nuanced nature of relocation disputes and the paramount importance of centering the child's best interests in these deliberations. It's a path that requires not just legal acumen but also empathy, understanding, and a commitment to finding a resolution that honors the bonds of family while respecting the legal mandates.


For those standing at this crossroads, the message is clear: seek guidance, understand your rights, and approach each decision with the child's wellbeing as your guiding star. Engage in open dialogue, explore collaborative solutions, and when in doubt, consult with professionals who can navigate you through these waters with expertise and care.


As you ponder the possibilities that relocation holds, remember that this journey, though challenging, also holds the promise of new beginnings and renewed hope. Approach it with clarity, preparation, and the support of those dedicated to guiding you through.


Contact Alliston Resolutions today to schedule a consultation with our experienced team. Together, we can create a tailored plan that meets your unique needs, ensuring that your post-divorce living arrangement is not just manageable, but harmonious and fulfilling.


For another great article on residency issues in divorce, read blog: "Considering Children's Voices In Divorce: Should Your Kids Decide Where To live?"




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