By Munera Lawyers
If you are planning to move with your child after separation, you should be aware of the significant changes to both Canada and Ontario’s legislation which outlines the steps that you must take prior to your move.
- The Legislative Change and Background
Some of the most heartbreaking cases in family law are those where one person wishes to move with a child. Ontario’s legislators have recognized the difficutly of these cases and have recently amended the relevant legislation to create a clear and streamlined approach to addressing such matters. In September of 2020, the Ontario Government introduced Bill 207, named the Moving Ontario Family Law Forward Act, 2020. The Act was subseqeuntly passed and formally amended the Ontario Children’s Law Reform Act (the “CLRA”). The amendments were intended to make the Ontario legislation consistent with the Federal Divorce Act, and came into effect on March 1, 2021.
The legislation distinguishes between changes in residence and relocation. Specifically, relocation is defined as a change in residence that will have a significant impact on the child’s relationship with other people who have decision-making responsibilities, parenting time, or contact.
- Steps to Follow
The new legislation requires a person seeking to move who has decision-making responsibility or parenting time with respect to a child to notify any other person who has decision-making responsibility or parenting time with the child at least 60 days before the planned move. The notice must be provided in a specific form outlining the expected date of the relovation, the address of the new residence, and a proposal as to how decision-making responsibilities, parenting time, or contact may be exercised.
Once another interested person with decision-making responsibilities or parenting time receives notice of a proposed relocation, they may object to the relocation by notifying the person who gave the notice of the objection or making an Application within 30 days of receiving the notice. The objection must include a statement outlining the reasons for the objection and their view on the proposal for decision-making responsibilities or parenting time.
If no objection is made within 30 days, and there is no previous order prohibiting a relocation, then the person seeking to relocate may do so. If an objection is made, the person seeking to relocate must obtain Court authorization in order to move.
- The Legal Test
When mobility matters are brought before the Court, the Court must take into account the best interests of the child. The best interests of a child is the primary legal test that a Court must follow when making decisions regarding parenting or contact with respect to a child. The test is holistic and requires a consideration of all factors related to the circumstances of a child, with a focus on a child’s physical, emotional and psychological safety as well as their security and well-being.
Specific considerations may vary dependant on the child’s age, upbringing, and particular needs. However, the Court may consider the child’s relationship with extended family members, their culture and heritage, the child’s own personal views and preferances, and the ability and willingness of interested parties to cooperate and communicate with one another.
The Court should also consider other factors such as the reason for the relocation, its impacts on the child, the current division of parenting time, the existence of any Court orders, the reasonableness of any proposals for decision-making and parenting time, and the likelihood of compliance with Court orders.
This is a departure from the long-standing leading case on this matter, Gordon v Goertz, [1996] 2 SCR 27, in which the Supreme Court of Canada held that the reason for relocation was not to be considered by the Court except in the most exceptional of cases.
- Burden of Proof
If both parties have substantially equal parenting time, the person planning to relocate must prove on a balance of probabilities that the move is in the best interests of the child. If the person planning to move has the vast majority of the parenting time with the child, the other must prove on a balance of probabilities that the move would not be in the best interests of the child. This means that the onus may be on a parent who is not planning to move to demonstrate that the other should remain in their current location.
NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.