Moving During a Custody Dispute?


Section 16.7-16.9 of the Divorce Act sets out new provisions dealing with changes in place of residence, and relocation for divorcing parents. These provisions were introduced in 2021.



Section 16.9 of the Divorce Act establishes a set of requirements for the parent who is intending to change their place of residence or relocate with their child. These include the requirement “to notify any other person who has parenting time, decision-making responsibility or contact with respect to the child.” It seems logical, right? Well, our legislators have established pre-determined requirements thus making the process understandable to the average person. If the parent is relocating, the notice must be provided in the prescribed form at least 60 days prior to the proposed relocation.


Burden Of Proof

A parent who wants to relocate with their child has the burden of proving that the move is in the best interest of the child. If another party, such as the other parent, objects to the move, then the burden of proof will shift to the objecting parent to prove why the relocation is not in the best interest of the child.


Best Interests of the Child Test

The overarching test that the court will use when deciding whether to grant one parent the ability to relocate with their child is the “best interest of the child” test. The Divorce Act outlines that the only thing that the court will consider prior to making a parenting or contact order is the best interests of the child. The Divorce Act has listed some factors that the court may consider when determining what is in the best interest of a child in cases regarding relocation. These factors include: the reason for the relocation, the impact that a relocation may have on the child, the amount of time the child spends with each parent, and the existence of court orders or parenting agreements.


– Alicia Ambrus