Often after separation, parents choose to relocate with the child(ren) within the province, outside the province, or even outside Canada. Reasons for relocating are unique to each case. Top reasons for relocation tend to be reduced costs of living, better educational opportunities, family support, better job opportunities, or being close to a new significant other. When relocating comes at the expense of reducing the child(ren) contact or parenting time with the other parent, a court application will most likely be required. In court, a judge will decide whether relocation is in the best interests of the child(ren).
5 STEPS TO A SUCCESSFUL RELOCATION
Step 1: Contact a family lawyer in advance of your decision to relocate
Relocation law is quite technical and you need to follow different procedures depending on whether you are applying under the Family Law Act or under the Divorce Act. Contact our Vancouver relocation lawyers to find out which Act applies to your case, what are the proper steps to follow, and what evidence you need to gather.
- under the Family Law Act, if the other parent is not a guardian and only has contact, (s)he cannot dispute the relocation itself. However, there is no such restriction under the Divorce Act;
- under the Family Law Act, if there is an agreement or a court order in place for parenting, the parent who chooses to relocate must give at least 60 days written notice of the intended relocation to the non-relocating parent or guardians. However, Divorce Act does not impose such a requirement; or
- the legal test applied to relocation under the Family Law Act, which distinguishes between whether parents have substantially equal time or not, is slightly different from the legal test applied under the Divorce Act.
However, regardless of the differences between the two acts, there are few steps you can take to prepare a strong case for relocation.
Step 2: Prepare a detailed pros and cons list
Research, research, research. If you want to have a strong case for relocation, you need to know everything about the new place that you intend to move to. You also need to be well organized. Prepare a detailed list setting out the pros and cons of relocation for yourself and your child(ren). You may want to consider how relocation would affect the following factors:
- the child’s health and emotional well-being;
- the child’s views, unless it would be inappropriate to consider them;
- Before asking your child(ren) about the relocation, I strongly suggest you contact a lawyer to find out whether your child(ren) needs to be involved at this stage and whether you should discuss the relocation with your children. There are other avenues available to have the views of your child(ren) heard other than you directly involving them. The court may draw an adverse inference against you, if you directly involve the children in your family law dispute.
- the nature and strength of the relationships between the child and significant persons in the child’s life;
- the history of the child’s care;
- the child’s need for stability, given the child’s age and stage of development;
- the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
- the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
- whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
- the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
- any civil or criminal proceeding relevant to the child’s safety, security or well-being.
For example, your list may include, amongst other things:
| Pros | Cons |
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Step 3: Gather as much evidence as possible supporting your pros and cons list
It is not enough to just say our child(ren) will have a better life in the new place. You need to have the evidence supporting every item in your pros list. For example:
- if you say your parents will look after your child(ren), get a statement from them setting out their relationship with the child(ren) and that they in fact are able and willing to look after the children.
- If you say you are going to get a job that will pay you more, have a copy of your job offer. Also provide evidence showing the best job offer you have here in Vancouver does not pay you as much.
- If you are saying that rent would be lower if you relocate, find some available rental advertisements that are similar to the place you currently reside in and demonstrate that your monthly rent would be reduced.
It is always a good idea to consult a lawyer to see if you have the proper evidentiary basis for your relocation case and what other evidence you need to gather.
Step 4: Prepare a solid parenting plan
If you want to have a strong case for relocation, you need to have a plan in place for the child(ren) to spend time with the other parent and other significant people in the child(ren)’s life. For example:
- Your parenting plan needs to be realistic and practical given the circumstances. To be feasible and realistic, your plan needs to consider the costs and time involved in transportation of the child(ren)(i.e. if you intend to move to China with your child(ren), a shared and equal parenting arrangement on a week on week off will not be feasible).
- Your plan also needs to take into account the child(ren) routines in the new place. For example, if your child(ren) goes to school then a shared and equal parenting arrangement may not be in the best interests of your child(ren).
- Assuming there are no concerns with the child(ren) being left in the care of the other parent, your plan needs to be as generous as possible and may include extended holiday parenting time, weekend parenting time, or even weekday parenting time (if the distance allows for it). Your plan may also include telephone calls, Skype, FaceTime, etc.
- Your plan may also include a provision for the other parent to be involved in the child(ren)’s schooling such as parent-teacher meetings, etc. by way of a telephone conference.
- You also need to maintain a flexible attitude towards your parenting arrangements. Ideally, you have evidence demonstrating that in the past you have been flexible when it came to your parenting arrangements.
Step 5: Consider discussing your plan with your former spouse
If you and your former spouse get along quite well and are able to communicate with each other, you may want to consider discussing the relocation and your proposed parenting plan with him/her. You may be able to agree on the relocation and the proper parenting arrangements going forward. Keep in my mind the focus of this discussion is the best interests of your child(ren) and not what either one of you wants or prefers. Again before directly involving your former spouse, contact a lawyer to see if this is a good idea. Your lawyer may be in a better position to negotiate on your behalf or may even consider negotiation not to be a good option.
