The Divorce Act Changes Explained

Relocation

Burden of proof – other cases
(Section 16.93(3), Divorce Act)

New section

Burden of proof — other cases

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
Old section

None.

What is the change

When ss 16.93(1) and 16.93(2) do not apply, each parent must demonstrate why the proposed relocation is or is not in the best interests of the child.

Reason for the change

Sections 16.93(1) and 16.93(2) capture the clearest cases for determining whether a relocation would be in the best interests of the child. In s 16.93(1), the situation is clear because both parents are equally involved in the care of the child, and a relocation could be disruptive to the relationship between the child and the non-moving parent. In s 16.93(2), one parent is the child’s clear primary caregiver, and so the other parent would have to demonstrate why potentially disrupting the child’s relationship with the primary caregiver would be in the best interests of the child.

Not all proposed relocations match the scenarios described in those sections, however. In other cases, or when parenting arrangements are not set out in a court order or agreement, both parents must demonstrate to the court why the proposed relocation is or is not in the best interests of the child.

When

March 1, 2021.