Moving after separation or divorce

Parenting terms have changed. The parenting terms used on this page may be different from the words used in your current order or agreement. See 'What do the family law words mean?' to learn more about parenting terms.

You do not need a new agreement or court order just because parenting language has changed. An agreement or court order that uses words like ‘custody’ or ‘access’ to describe the parenting arrangements continues until it is changed (‘varied’) with a new agreement or court order.

The words custody and access are no longer used. The main parenting words used now are decision-making responsibility (used to be 'custody'), and parenting time (used to be 'access'). The new words focus on relationships with children, and parents’ responsibilities to their children.

Decision-making responsibility is about who will make significant decisions about the child’s well-being, based on the child’s best interests. For example, this includes decisions about a child’s:

• medical and dental care
• education
• culture, language, religion and spirituality
• significant extra-curricular activities
• other important decisions about the child.

Decision-making responsibility may be

• shared between parents, or
• divided between parents (for example, one parent makes health decisions and the other parent decides about schooling), or
• one parent may be responsible for all significant decisions about the child.

Most parents are expected to talk about important decisions that affect a child, regardless of who has the decision-making authority.

Parenting time means the time a child spends with a parent, or person who has a parenting role. It includes time when a parent is primarily responsible for the child, but the child is not actually with them. For example, when the child is in school or daycare. A parent who has parenting time has the right to make day-to-day decisions, including emergency decisions, about a child during their time with the child.

A person who has decision-making responsibility or parenting time has a right to get information from third parties about the child’s health, education and well-being, unless there are privacy law limits or a court orders something different. Examples of third parties are schools, healthcare or childcare providers.

Contact means time spent with people who are important in the child’s life (grandparents for example), but who are not the child’s parents or in a parenting role.

The words parenting time and contact replace ‘access’.

In family law there are rules that apply when someone wants to move, either
(1) with the child, or
(2) on their own (without the child).

The rules about moving are complicated, so it is always a good idea to talk with a lawyer right away if you are planning a move. There could be serious consequences if you move with a child without the consent of the people who have parenting responsibilities, or court ordered contact, with the child.

Relocation
In family law a move is called a ‘relocation’ if the current parenting schedule or arrangements will no longer work because of the move.   It is a move that is likely to have a significant impact on the child’s relationship with a parent, guardian, or with a person who has an order for contact with the child. Sometimes even a small move can be a 'relocation', as it might have a considerable impact on the parenting schedule and child's relationship with others.  If this fits your case then you cannot move unless you have a court order to allow you to move or the written consent of the people who will be affected by the move.

If you have a court order or agreement you must follow it and do what it says to do before you move.  It may talk about things like notice of a planned move or say the geographic area where your child or children must live.

The Divorce Act (federal law) and the Parenting and Support Act (provincial law) both have relocation rules.  

The Divorce Act relocation rules only apply if there is a Divorce Act court order (often called a 'Corollary Relief Order' in Nova Scotia) under the Divorce Act that is about:

• parenting time
• decision-making responsibility
• contact, or
• custody or access (under the old Divorce Act).

In all other cases the provincial Parenting and Support Act relocation rules apply. 

Notice of relocation rules and processes to follow are similar under both laws.

If the planned relocation will have a significant impact on parenting arrangements or contact time with the child:

• in most cases you will need permission to relocate from the child’s other significant caregiver—anyone who has parenting time or decision-making responsibility
• you must give written notice of the planned relocation to anyone who has parenting time, decision-making responsibility or contact
• you must give notice whether you plan to relocate with the child, or on your own (without the child).

You do not need permission to relocate from a person who has contact time with the child, but you must give them notice of the planned move.

If you have a court order or agreement you must follow it and do what it says to do before you move.

You may face possible criminal charges if you move your child without permission, written agreement, or a court order allowing you to move the child.

If you are afraid about your safety or your child's safety, it is very important to get legal advice about the impact of family violence on a planned relocation. Get legal advice before you relocate. If family violence is a concern then the following notice rules may not apply.  See 'When notice rules might be different' below.

60 days’ notice of a planned relocation
If you plan to relocate - with or without the child - you must give 60 days’ written notice to anyone who has parenting time, decision-making responsibility or contact.  

The written notice must include:

• the date of the planned move
• the new address or location
• any other new contact information for the child or you
• a new proposal for how parenting time, decision-making responsibility or contact could happen if the move goes ahead.

You may use this form to give notice. The form is for cases under the Divorce Act but you can use it if your case is under the Parenting and Support Act too.  The form has all the information you must include in your notice.

Notice gives everyone a chance to discuss the planned move and try to work things out.

30 days to disagree with a planned relocation
A person with parenting time or decision-making responsibility and who gets notice of a planned relocation, has 30 days to  disagree with the planned relocation or the child. This is called 'objecting'.

There are two ways to object:
(1) write to the person and explain why you object to the planned relocation, and
(2) to try to stop a move with a child, apply to court to have the case heard by a judge.

1) You may use this form to explain your objection to a planned relocation.  The form is for cases under the Divorce Act but you can use it if your case is under the Parenting and Support Act too.  The form has all the information you must include in your notice.

The objection should:

• say there is an objection,
• say why you do not agree with the planned move, and
• give your views on the new proposal for parenting time, decision-making or contact in the notice of relocation.

If you do not object, the move may go ahead, unless there is a court order or written and signed agreement that says differently. 

A person with a contact order cannot object to a planned relocation.  If new contact arrangements are needed then the parents and caregivers should try to work it out.  If they cannot, then a court application may be filed to ask the court to make an order about new contact arrangements, but a person with a contact order cannot stop a planned relocation.

2) To try to stop a move with a child, apply to court to have the case heard by a judge.

If you are worried that the other person will move with the child, or if they have already left with the child, then you may file a court application. Explain the issues clearly in your court application and if it is urgent to have your case heard by a judge.

You can only object to a relocation with a child.  The court cannot order the other person not to move if they plan to move without the child or children.  But the court can order that the child or children will not move.

Is a planned move in the child’s best interests?

If there is no agreement about a planned relocation and the issue goes to court, the court must think about specific factors when deciding whether a planned relocation of a child should happen. These include:

• the reasons for the relocation
• how the relocation would affect the child
• the amount of time the child spends with each person who has parenting time, and their involvement in the child’s life
• whether there is a court order or agreement that says the child must live in a specific geographic area
• whether proposed changes to parenting time, decision-making responsibilities or contact after a planned move are reasonable
• whether the parties have followed their family law obligations (for example, have they followed the current court order?)
• did the person who is planning to move follow the rules for notice.

These specific 'relocation' best interest factors are in addition to the other best interest factors listed in Divorce Act or Parenting and Support Act. No single factor will decide the case.

The court will not look at whether the person who plans to relocate would still move if the child was not allowed to move.

The rules about who has the job of proving that a move should happen or not, called the ‘burden of proof’, are complicated. It is best to talk with a lawyer.

In general:

Parenting time arrangement	Burden of proof is on
'Subtantially equal' parenting time	Parent who plans to relocate to show why the move is in child's best interests
Relocating parent has 'vast majority' of parenting time	Parent who opposes the relocation to show why the move is not in child's best interests
Any other parenting time arrangement	Each parent to show why the planned move is, or is not, in the child's best interests

In some limited situations a court may order that notice of a planned relocation is not required, or may change the normal notice rules.

For example, if there is family violence and you are scared about your safety or your child's safety, the court might say notice is not required, or might shorten the notice period and say it is not appropriate for the other parent to know the location of the child’s or other parent’s new residence.  You can apply to court to ask the court to change the notice rules in your case.  You can apply to court without telling the other party (the other party is usually the other parent).

It is best to talk with a lawyer right away if you think you have a situation where the notice rules should not apply or should be changed.  Do this before you relocate with your child.

1. When the court says the relocation can happen, or
   
   
2. (a) A person who has parenting time or decision-making responsibilities got notice of the move, and has not objected to the relocation within 30 days; and
   (b) There is no court order prohibiting the relocation.

If the move is authorized then the court may consider the costs to exercise parenting time. The costs may be shared between the person relocating with the child, and the person who is not.

If you have a court order or agreement you must follow it and do what it says to do before you move. 

If there is a court order and you are planning a move that will not have a significant impact on the child’s relationship with a parent or a person with contact, you must still give written notice of the planned move to anyone who has parenting time, decision-making responsibility or contact.

In this case the written notice must give:

• the date of the move
• the new address, and
• new contact information for the child or person who is moving.

• The Department of Justice Canada's website has more information about family law and the changes to the Divorce Act, including fact sheets on:
  • Parenting Arrangements
  • Divorce and Family Violence
  • Child's Views and Preferences
  • Moving after separation or divorce
  • Duties for parents and others
  • Family Dispute Resolution
• www.nsfamilylaw.ca- family law information on many topics, including divorce, parenting arrangements, spousal support and child support
• Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
• Contact Nova Scotia Legal Aid for family law legal information and legal advice
• Contact a lawyer in private practice (lawyer you would pay) who does family law
• Free and low-cost legal help in Nova Scotia.