Questions and answers: I’m married and I want to move with my child to another province

• Q: I intend to move with my child to another Province. What Legislation Applies?

• A: Like almost all law, the answer is it depends. If you are married both the Divorce Act and the Family Law Act applies. If you are not married and have a child together parties proceed via the Family Law Act.

• Q: Ok, I’m married so both the Divorce Act and FLA applies?

• A: Yes, both apply, but because the Divorce Act is Federal the doctrine of paramountcy applies and likely the judge will consider your application based on the Divorce Act.

• Q: Ok, why didn’t you just tell me the Divorce Act applies…. lawyers, never a straight answer. So tell me more about what the Divorce Act says, can I move with little Athena or what?

• A: The first step is you have to give notice. Pursuant to section 16.9 (1) of the Divorce Act you must give at least 60 days notice as follows:

• 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, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

The person who has parenting time or decision-making responsibility in respect of the child is pretty wordy, lets just call them Jordan in this example.

Q: OK, once I’ve given notice, I’m good to go? I can move with Athena?

A: Well, no, not necessarily? It depends if Jordan responds or not. If Jordan objects within 30 days you will have to go before a judge for an order allowing the relocation. The governing legislation is section 16.91 (1) of the Divorce Act:

16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if

(a) the relocation is authorized by a court; or

(b) the following conditions are satisfied:

(i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in

(A) a form prescribed by the regulations, or

(B) an application made under subsection 16.1(1) or paragraph 17(1)(b), and

(ii) there is no order prohibiting the relocation.

Q: You mean some judge is going to tell me what is best for my child? How will that decision be made?

A: Again, the Divorce Act and case law will guide the court’s decision. Section 16.92 (1) of the Divorce Act demands the courts consider the following in determining the best interests of the child:

• a) the reasons for the relocation;

• (b) the impact of the relocation on the child;

• (c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

• (d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

• (e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

• (f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

• (g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

Q: Who has to prove what is in the best interest of the child is that me or Jordan? If you say it depends, I’m going to lose it!

A: I don’t want you to lose it, so my answer to you is:

If little Athena spends equal time with you and Jordan (by order or agreement); then the onus is on you to prove it is in Athena’s best interest to move with you to Ottawa.

But if little Athena spends the vast majority of her time with you (by order or by agreement), then the onus is on Jordan to prove that relocation is not in Athena’s best interest.

Q: If the judge says I can’t move with Athena to Ottawa, I won’t go, I will stay here in BC. Is a judge going to ask me what I will do if the order isn’t granted, will the judge ask me if I will move without her?

A: A judge shouldn’t ask you this and if they do ask you or if you blurt it out in court the judge is not permitted to consider what you will do if the child is not permitted to relocate

Q: Why is a judge not allowed to consider what I will do if the order for relocation is not granted.

A: Do you really need to know this? This is a pretty detailed question. I’ve given you a lot a free legal advice already. Its because of the Double Bind issue. If you want to hear more, you are going to have to pay up and retain me!