In the recent decision D.T.D v T.A.J. (2022 SKCA 34) [D.T.D.], the Saskatchewan Court of Appeal discussed the difference between a "change in residence" and a "relocation" under The Divorce Act.
Fundamental changes to The Divorce Act came into force in March 2021. The amended legislation provides no definition for "change in residence" but does define "relocation" at section 2:
relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child's relationship with
- a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
- a person who has contact with the child under a contact order ...
Section 16 of the Act outlines the different procedures for parties to take during a "change in residence" versus a "relocation". No matter whether a parent is changing residence or relocating, the moving parent must provide written notice of the move to the other parent or person(s) responsible for the child. However, while written notice about a "change in residence" is for informational purposes only, a "relocation" can be formally opposed by the other parent once written notice is received.
If a non-moving parent objects to the proposed relocation, the parent who wants to move must apply to the Court for approval prior to the move. The terms of the parenting arrangement between the two parties will determine which of them bears the burden to prove that the move is in the child's best interests:
- where a child spends "substantially equal time" in the care of each party, the moving parent has the burden of proving that the relocation isin the best interests of the child;
- where the moving parent has the "vast majority" of the parenting time with a child, the non-moving parent must prove the relocation is notin the best interests of the child; and
- in all other cases, both parents have the burden of proving their case.
A simple "change in residence" becomes a "relocation" where a move would be "likely to have a significant impact on the child's relationship" with a parent or other person responsible for the child. In D.T.D., which is a 2022 case, the Saskatchewan Court of Appeal provided guidance on when this threshold will be met.
The Facts of this Case
In D.T.D., the mother and father separated after almost four years of marriage. At the time of separation, they had a three-year old daughter and a five-month-old son. The father remained in the family home after separation and the mother moved with the children into a friend's basement about 6.5 km away from the father, but still in the same community.
During the first month of their separation, the mother's lawyer sent a letter to the father advising him that she intended to relocate, with the children, to another community. The letter stated that it was the "Official Notice of Relocation".
In response, the father filed a formal objection to the proposed move because:
- he had been an involved parent and relocation would disrupt that;
- relocation would not enhance the mother's employment prospects; and
- the mother would be able to find low-cost housing in the original community.
The father also commenced his own application to the Court of Queen's bench for a parenting schedule and asked the Court to prohibit the mother from relocating.
The Result of the Father's First Application
The judge hearing the father's application granted the father parenting time and concluded that the children should reside primarily in the care of their mother. The judge did not rule on the proposed move at that time but did direct that the mother refrain from moving to the new community on the basis it was premature and required more evidence. However, before the judge's written decision became available, the mother did move with the children to the new community.
In response to the mother's move to the new community, the father brought a second application requesting that the mother be ordered to return the children to their original community. At the same time, the mother brought an application requesting permission for the move. In her application, the mother reframed her move to the new community as a "change in residence" according to Section 16.8 rather than a "relocation" pursuant to Section 16.9.
The Result of the Second Applications by the Father and Mother
Upon hearing these applications, the presiding judge ruled that the mother's move to the new community was, in fact, a "change in residence" and not a "relocation". The father appealed, asking the Saskatchewan Court of Appeal to determine whether the move was a "change in residence" or a "relocation" and, if it was a relocation, whether it was in the best interests of the children.
In accordance with the Act, the Court of Appeal considered whether the move would have a significant impact on the children's relationship with their father when examining whether it was a "relocation" rather than a "change in residence". In doing this, the Court of Appeal provided a non-exhaustive list of factors which may be considered in addition to the factors listed in Section 16, with respect to a determination of parenting generally. These factors are:
- whether and how the move would change the amount and frequency of parenting time for the non-moving parent;
- whether and how the move would affect the degree of involvement of the non-moving parent in the child's activities, schooling and so forth;
- whether the moving parent is willing to bear the burden of any increase in the commuting time;
- how the distance or commuting time between the two residences would affect the quality of the child's relationship with the non-moving parent; and
- whether the non-moving parent has the ability – financial or otherwise – to commute to and from the child's proposed new place of residence or an intermediate location.
Importantly, the Court of Appeal pointed out that the focus must be on the impact on the child's relationship with a parent as opposed to any impact on that parent's parenting time with the child. Therefore, increased distance and driving time involved in a move are not necessarily determinative of whether the move affects the relationship between the non-moving parent and the child.
The Court of Appeal ultimately upheld the lower Court's decision that the move would not significantly impact the children's relationship with their father, for the following reasons:
- the mother's move would not detrimentally affect the current parenting arrangement in place;
- the impact of the move would not be as disruptive at the children's current age as it may be at an older age;
- the children were not yet attending school;
- the parenting "status quo" would not be disrupted as the mother would remain the primary parent and the father would remain an involved parent to the extent possible with his employment;
- the children had access to extended family in both the original community and the new community; and
- the father's parenting time could still be enjoyed without significant impact if the children lived in the new community.
Generally, where a parent plans to move with a child, they must provide written notice of the proposed move to the child's non-moving parent. If the proposed move is a "change in residence", the written notice will be for informational purposes only. If the proposed move is a "relocation", then the non-moving parent may object to the move, following which the moving parent must apply to the Court for permission to relocate with the child.
A "change in residence" becomes a "relocation" when the proposed move would have a significant impact on the child's relationship with their non-moving parent. Whether this threshold is met will be highly contextual and different for every situation, but always guided by what is in the child's best interests.
Note: The Children's Law Act, 2020 mirrors the Divorce Act provisions regarding "change of residence" and "relocation" for parents who are not legally married. This means that the factors and reasons in D.T.D. will apply, regardless of the marital or relationship status between the parents.
If you are looking for advice on a change of residence or relocation involving a child, please do not hesitate to contact our Family Law Practice Group for advice.
Thank you to summer student, Jakaeden Frizzell, for his assistance in the preparation of this article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.