Proposed Changes to the Divorce Act, Part 2

Do the proposed changes impact moving with my child after separation?


On May 22, 2018, Bill C-78 had its first reading. This bill proposes several changes to the Divorce Act and related legislation. In this post, Ainsley Shannon, a Fresh Legal intern from the University of Ottawa law school, reviews the changes related to moving with your child after separation. If you want to read the bill yourself, it can be found here. The bill also sets out terminology changes and factors to be considered in parenting orders, which will are reviewed in Part 1 of this post.

The law on relocation currently follows the Supreme Court decision in Gordon v Goertz. For more information see this post about relocation. Bill C-78 codifies and adds to these factors. This means thatshould Bill C-78 pass, it will impose a legislative framework for relocation that does not currently exist. 

Required Notice

In addition to codifying the principles and definitions set out in Gordon, the proposed legislation creates a specific requirement for the relocating parent to provide notice of the move, and requires the judge to consider whether the relocating parent complied with the notification process. The notification requirements state that the relocating parent must give 60 days notice in writing and that that notice must include the date of relocation, the new address and contact information, and a proposed custody plan

The Burden of Proof

The bill also specifies which party bears the burden of proof in relocation cases as follows:

  • In situations of equal parenting time, it is the burden of the person relocating to provide evidence that such a relocation is in the best interest of the child as per the factors set out above. This means if you want to relocate and your ex has equal time with the child, you will need to prove that it is in your child’s best interests
  • If the child lives primarily with one parent, and that parent wishes to move, the non-moving parent must prove that such a move would not be in the child’s best interests.
  • In any other case, the burden lies on both parents equally.

Access Costs May Be Shared

Finally, the new legislation proposes that the increase in cost of access because of relocation for the non-relocating parent may be apportioned between both parties. For example, access costs may be incurred when a parent who has not relocated will have to pay for flights to see their child. Under the new legislation, the parent who has relocated may be required to share in the cost of those flights.

Currently, the Federal Support Guidelines provide for sharing some expenses, which do not include travel costs, and the variation of the Table amount of child support in cases of undue hardship, which can include undue hardship caused by extraordinary access costs. The undue hardship test can be very difficult to meet.  Otherwise, access costs are not shared or provided for. Were Bill C-78 to become law, the effect would be that apportionment of access costs could be awarded without the need to prove undue hardship.