Relocation and Notice – New Mobility Provisions under the Divorce Act
Amendments to the Divorce Act has now been in effect for over a year and there remains much to be interpreted by the Courts. One of the most significant changes that came into effect with the amendments was the process with respect to relocation. Pursuant to the Divorce Act, a “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) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
(b) a person who has contact with the child under a contact order.
Pursuant to the new section 16.9 of the Divorce Act, a person who has “parenting time or decision-making responsibility in respect of a child” and who is intending to relocate either themselves or the child, must give notice in the prescribed form at least 60 days before the expected date of relocation. With respect to content, the Government of Canada has created a form, which can be located here.
Once notice has been received, the recipient, who must have parenting time with or decision-making responsibility in respect of the child proposed to be relocated, has 30 days to object to the relocation by setting out their objection in the prescribed form or filing an application before the Court. If they do neither, the parent wishing to relocate may do so after 60 days have passed.
With respect to method of delivery of the notice, the Divorce Act does not identify which methods are allowed, however, the Government of Canada has set out on their website numerous approved methods, including by email, mail or in person, and that you must be able to show that the recipient “actually received it”.
In the recent Alberta Court of King’s Bench decision of Keeping v Keeping, 2021 ABQB 892, the issue was whether notice of a proposed relocation was effective, notwithstanding the recipient had not actually received it. In this case, the mother engaged the father in conversations regarding a proposed relocation of the child from Alberta to the Maritimes, sent a Notice of Relocation in the prescribed form by registered mail, and advised the father that such Notice had been sent. The Notice in question was sent via registered mail, however, the father refused to pick it up from the post office and it was eventually returned to the mother. The father did not object to the relocation in the form provided for by the Divorce Act, nor did he file an application with the Court to oppose the move. The mother relocated the child approximately 3 months after the Notice was sent to the father, who thereafter made an application for the immediate return of the child.
The central issue before the Court on the application was whether the mother had complied with the relocation provisions in the Divorce Act and, in the absence of an objection, she was thus entitled to relocate the children. After finding that the Notice met the prescribed form, the question the Court was faced with was whether notice was effected in the face of the father not having received the Notice, by virtue of him failing or refusing to pick it up from the post office. The Court found that the mother had sent the Notice via registered mail, an approved method of service pursuant to the Rules of Court, and had also advised the father via text message that the Notice had been sent in the mail. The Court further found that the father had made a conscious decision not to pick up the Notice notwithstanding he was well-aware of its contents, and that he chose not to participate in the process. The Court determined that it was not sufficient for the father to “lay in the weeds” and rely on his own refusal to participate. The Court found that the mother had complied with the relocation provisions in the Divorce Act and thus was entitled to move the children, and the father’s application was dismissed.