The Divorce Act’s new change of residence and relocation provisions require that, before any move with a child, specific advance notice of the move must be provided. Where the move is a relocation, under section 16.9 (1), a person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify any other person with parenting time, decision-making responsibility, or contact under a contact order, at least 60 days before the expected date of the proposed relocation. If there is no agreement about the proposed relocation, the Court may decide if a move is authorized.
Burden of Proof
Under section 16.93 (1), the party who intends to relocate the child – where the parents substantially comply with an Order, arbitral award or an agreement that they spend substantially equal time with the child – has the burden of proving that the relocation would be in the best interests of the child.
Note that, under section 16.93 (2), this burden of proof shifts if the parties to the proceeding substantially comply with an Order, arbitral award or an agreement that provides that a child of the marriage spends the vast majority of their time in the case of a parent who intends to relocate. If that is the case, then the party opposing the relocation has the burden of providing that the relocation would not be in the best interests of the child.
In any other case, under section 16.93 (3), the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
The Court also has the discretion not to apply subsections 16.93(1) and (2) on the burden of proof when the order is an interim order: section 16.94.
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