‘Change in residence’ and ‘relocation’ is when a parent or guardian plans to move, either on their own or with a child. This issue is sometimes called ‘mobility.’
There are two types of moves:
1) Change in residence
- This is a ‘smaller’ move – one that does not impact parenting time or contact time
- This is a more substantial move – one that can be expected to significantly impact the child’s relationship with a parent, guardian, or person who has an order for contact time with the child
This will depend on your situation. You may already have a court order or written agreement (like a separation agreement) that allows you to move. You may have a court order that requires you to give a set amount of notice to the other parent or guardian of any planned move. You must follow the terms set out in your order or agreement.
If you don’t have a court order or written agreement that deals with this issue, you must provide maximum written notice to the other parent, guardian, or person with a court order for contact time with the children. You must give this notice as soon as you find out about the move. If you can’t give at least 60 days’ notice, you must explain why in the notice itself.
Any person receiving notice of the proposed move has the right to apply to the court to challenge your ability to move the child. This application can be made at any time, even after the move has taken place. You should always get advice from a lawyer about what to do if you are planning to move your child.
You may face possible criminal charges if you move your child without permission, agreement, or a court order allowing you to move the child.
When a parent or guardian plans to change their residence or relocate – with or without the child - they must notify any other parent or guardian of the child about the move. They must also notify anyone who has a court order for contact time with the child. This notification must:
- be in writing
- contain the date of the proposed move, the new location or address, and contact information
be given as early as possible
- if the notice is given less than 60 days before the proposed move, the person planning to move or relocate must explain to the court why notice wasn’t given sooner
- for relocations, include the proposed changes to custody, parenting arrangements, parenting time, contact time and interaction resulting from the relocation
Parties can agree to different arrangements for the notification, and a court can order different arrangements as well.
When a parent or guardian plans to change their residence or relocate – even if they’re not moving with the child - they must notify any other parent or guardian of the child about the move. They must also notify anyone who has a court order for contact time with the child.
The written notice may be given to the other parent, guardians, or persons with an order for contact time by, for example: email, fax, regular mail, courier, in person, or by personal service.
If the matter goes to court, you’ll have to prove to the judge that the other party received actual notice. Keep proof of having delivered the notice and any response you receive. For example, save the courier receipt, fax confirmation, or email showing the notice was sent.
If you deliver the notice in person, and if the other party is willing, have them sign an acknowledgment of getting the notice. You should not deliver the notice in person if there is a history of high conflict or violence with the other party.
If the applicant requests, a judge may change or waive the notification requirements if:
- giving notification could create a risk of family violence
- there is no ongoing relationship between the child and the person who would have received notification
- there is another sufficient reason, as determined by the judge
Only a person entitled to receive notification of the move can make an application to the court to oppose the move. This includes a parent or guardian of the child, or anyone who has an order for contact time with the child. The application may be made at any time, including after the move has taken place. However, the court will want to know why the application was not made sooner if not made within 30 days of receiving the notice.
It is up to the person receiving notice of the move to apply to the court if they disagree with the move. This application should be made within 30 days of receiving notification of the move.
The move may go ahead as planned if:
- the other party does not apply to the court to contest the move within 30 days of receiving the notice, and
- there is no court order or registered agreement authorizing or prohibiting the relocation of a child, or an order changing or waiving the notification requirements
If the person receiving notice of the move applies to the court to oppose the move, the matter will likely go to a hearing in front of a judge. The judge may make an order:
- authorizing or prohibiting the relocation of a child
- imposing terms, conditions, or restrictions as they see fit
Usually when you are applying to the court to deal with parenting arrangements, you must apply to the court closest to where the children are living. This is so that the court is allowed, or ‘has jurisdiction,’ to process that application.
For example, if you live in Bedford, but the children live in New Glasgow, you will likely have to contact the court in Pictou to make your application. If you are dealing with parenting arrangements as part of a divorce proceeding, though, this may work differently. If you are not sure where to file your application for custody or access, you should speak with a lawyer or court officer.
Parenting issues are dealt with in Family Court, or in the Supreme Court (Family Division) if you are making an application in Halifax, Sydney, or Port Hawkesbury.
If you are divorced and are making an application outside of the Halifax Regional Municipality or Cape Breton, you will likely have to make your application at the Supreme Court as a variation application under the Divorce Act.
The person proposing the move – with or without the child – does not have to make an application to the court to do so. The person proposing the move must ensure that they provide maximum written notice to the other parent, guardians, or persons with an order for contact time. Maximum notice means you let the other person know about the move as soon as you know about the move yourself.
If you can’t give at least 60 days’ notice before the proposed move, you will have to explain why in the notice.
The person who receives notice of a move or relocation does not have to do anything, if they are in agreement with the proposed move.
The times when a court application will usually be required to deal with a move or relocation are:
- a person receiving notice of the move opposes the move, or
- a parent or guardian has moved – with or without the child – without having given any notice to the other parent, guardians, or persons with an order for contact time
Based on the existing parenting arrangements at the time the matter goes to court, the following guidelines apply to relocation cases:
A. If the parents substantially share the parenting of the child, the parent proposing the move must show why the move is in the child’s best interests.
B. If the parent proposing the move is the primary care parent, and the other parent is not substantially involved with parenting the child, the parent opposing the move has to show why the move would not be in the child’s best interests.
In situations other than those described in A and B above, all parties to the application must show the court what is in the child’s best interests.
The court will determine what parenting arrangements are in place by looking at:
- the actual time the parent or guardian spends with the child
- the day-to-day caregiving responsibilities for the child
- the ordinary decision-making responsibilities for the child
In other words, the judge will consider what is actually happening, as opposed to what is described in any court orders or agreements.
Relocation focuses on the impact of a move on the child’s relationships with their other parent, guardian, or persons with an order for contact time. Relocation is not determined by distance alone.
If a parent is planning to move to another province or country with the child, this may certainly have a significant impact on the child’s relationships with their other parent, guardian, or person who has an order for contact time. Relocation can also happen if the move is a shorter distance, but impacts the child’s ability to exercise their relationship with the other party. For example, even if the parent and child are only moving 30 minutes away, this may present significant challenges to the other parent in exercising parenting time if that parent does not have a car, and there is no public transportation near the child’s proposed new home.
If the parties can’t agree on whether the move is substantial enough to be called a ‘relocation’, the impact of the move on the child’s relationships with their other parent, guardian, or persons with an order for contact time will be considered by the judge.
Relocation cases are often complicated and may involve a long court process. Do not leave this issue to the last minute to deal with, as it may affect your ability to make plans for your move. Give your written notice to the other parent, guardian, or person with a court order for contact time as soon as you find out about the move yourself.
Sometimes situations happen that are out of your control, for example, if the other parent gave you permission to move the child, and withdrew their permission at the last minute. In this case, the court may be prepared to deal with this issue on a time-sensitive or ‘urgent’ basis. You can ask court staff for information about how to start a court application on a time-sensitive basis. You should also speak with a lawyer for advice. A judge will decide whether your situation will be treated as time-sensitive.
An ‘emergency’ application may be filed where there is a likelihood of danger to those involved, either one of the parties or a child. For example, if there is a risk of violence or immediate harm, or the child is on the way to the airport and may be taken out of the country, this may be considered an ‘emergency.’ A judge will decide whether your situation will be treated as an emergency. A judge may make an order preventing the removal of the child from the Province, or from a place in the Province.
For information about urgent or emergency court applications, click here.