Legislating About Relocating Bill C-78, N.S. and B.C.

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Parents and Parenting, Relocation, Divorce Act, Decision-Making, Nova Scotia, British Columbia


The law of relocation has been a perpetual struggle for the Canadian courts, dating back to the times immemorial before the Supreme Court's 1996 decision in Gordon v. Goertz. 1 The Gordon decision rejected any presumptions or burdens at all, preferring a pure best interests approach to relocation decision-making. 2 Since 1996, the Court has refused leave to appeal in relocation cases 24 times, 8 times in the past three years. 3 Provincial appeal courts have generally avoided developing any intermediate principles in relocation cases, hiding behind appellate "deference" except when overturning trial decisions for one-off "legal errors". 4 As unpredictability, inconsistency and litigation ensued, legislators in Canada have moved to revise the law: first, British Columbia in 2013; 5 then, Nova Scotia in 2017; 6 and now the federal government in Bill C-78, with the wide-ranging amendments to the Divorce Act that will be proclaimed some time in 2020. 7 In this article, I propose to focus upon the changes to relocation law in Bill C-78, as these will have the greatest impact across Canada. In any relocation regime, there are a number of issues and sub-issues to be decided: (1) Notice of relocation: mandatory or not, relocation, contents of notice, consequences (2) Presumptions and burdens: presumptions or not, threshold requirements, how many (3) Added best interests factors: added relocation factors, the double-bind question (4) Miscellaneous other issues: travel expenses, change of circumstances On each of these issues, the three Canadian statutes have effectively reversed or undone the main points of the Supreme Court's approach in Gordon v. Goertz. The best interests of the individual child will still determine the outcome, of course, but there is more process and more substantive structure in getting there. 1.NOTICE OF RELOCATION A court can always attach a condition to a custody order, requiring that a parent give notice to the other parent of any proposed change of residence of the child, as was explicitly recognised in s. 16(7) of the 1986 Divorce Act.8 Such notice clauses are not common, but are not rare either. All the Canadian relocation statutes establish a regime of mandatory notice of relocation, no longer leaving the matter to the parties in agreements or to courts in individual orders.9 What are the possible purposes of mandatory notice of relocation? (i) the usual reasons for any notice, to inform another party of an intended future action, here relocation and its likely date; (ii) to provide the new address and contact information for the parent or child; (iii) to provide the parties an opportunity to discuss the move and to attempt to resolve any changes in those relationships; (iv) to recognise the significant impact of relocation upon the child's relationships; (v) to begin the legal process, to determine whether relocation will or won't be allowed.