New Divorce Act Child Mobility changes are coming to Canada in 2021. MacLean Law’s multi-award-winning family lawyers work from 7 locations located across BC and in Calgary.
These are unsettled times, both in Canada and across the globe: economically (COVID-19), socially (#BlackLivesMatter), and politically (#KanyeWest2020). In times like these, what we need (as much as possible) is clarity and certainty. In the practice of law, legislation (ie. government-made law) attempts to provide this direction. In the area of family law, for married couples at least, this legislation is the federal Divorce Act. Soon there will be New Divorce Act Child Mobility and relocation rules.
Vancouver New Divorce Act Child Mobility
The Divorce Act deals with many issues facing separating married couples, including termination of the marriage, children, and financial support of both the spouses and children. In its present form since 1986, the current Divorce Act was considered conflictual and outdated. In 2018, the federal government proposed amending the current Divorce Act (and other legislation) to modernize and clarify current federal family law legislation, anticipating an effective date of July 1, 2020. With the onset of the COVID-19 pandemic, the passage of the new Divorce Act has now been delayed to March 1, 2021. So, what are the New Divorce Act Child Mobility and relocation rules? Peter Graburn of our Calgary office explains the changes to child mobility and relocation under the New Divorce Act Child Mobility rules.
As indicated when the new legislation was proposed in 2018 see Calgary Family Lawyers Explain New Divorce Act the amendments to the Divorce Act aim to clarify and modernize the legislation in four (4) particular areas, namely: the promotion of children’s best interests; protection against family violence; reduction of child poverty, and; increased accessibility and efficiency of the family justice system. In a series of articles, we intend to look at three (3) of the main changes in the new Divorce Act, namely:
- Codification of the rules of relocation (Mobility);
- Clarifying the definition of “Best Interests of the Child”, and;
- Clarify the terms of Domestic (Family) Violence.
Calgary New Divorce Act Child Mobility
In this article, we look at that first issue: Mobility.
People relocate (ie. move) for many reasons: work, family, to start a new life (particularly after family separation). However, when one parent wants to move elsewhere with the children and the other parent objects, this becomes the legal issue of Mobility.
The Current Child Custody Law
The current Divorce Act does not contain any specific provisions regarding the issue of Mobility. Instead, the current law regarding Mobility is contained in the leading Supreme Court of Canada case of Gordon vs. Goertz ( 2 SCR 27), which sets out a 2-step legal test for determining whether the move with the children should be allowed, being:
- First, the moving parent must show there has been a material change in circumstances affecting the child (ie. a change in the ‘status quo’);
- Then, the moving parent must establish that the proposed move is in the “best interests of the child”.
After setting out the current factors the Courts should consider in determining whether the intended move is in the “best interests of the child”, (former Chief) Justice McLachlin concluded (at Para. 50):
“In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?”
The New Divorce Act Child Mobility
The current law on Mobility under the old Divorce Act was often criticized as being too vague and general in this very fact-specific situation, leading to unpredictable outcomes from the Courts The new Divorce Act attempts to provide some guidance to the issue of Mobility by providing direction in three (3) key areas, being:
- Notice – the moving parent must give at least 60 days’ notice of the intended move to the non-moving parent, including the expected date of the move, the address of the new residence, and a proposal how the non-moving parent can continue to exercise parenting time with the children after the move. The non-moving parent has 30 days to respond to the notice;
- Defining “Best Interests of the Child” – the new legislation includes additional factors the Courts must look at in determining whether the intended move is in the “best interests of the child”, including the reasons for the move, the impact of the move on the child, any agreements (or Court Orders) regarding the child’s residence, and the reasonableness of the new parenting time proposal;
- Burden of Proof – finally, the new legislation also gives some clarity as to which parent has the burden to prove whether the intended move is beneficial (ie. in the best interest”) for the child or not.
The decision to relocate with a child far from a co-parent (ie. Mobility) is a serious one, and highly emotional. It is often one of the most contentious and difficult areas of family law. The Courts take this decision very seriously, as well.
The current state of the law on Mobility under the current Divorce Act (as set out in Gordon vs. Goertz) does little to add any certainty to this contentious issue. Fortunately, the new Divorce Act includes provisions to add some further direction to this contentious area of law. But this issue is still very fact-specific. It is also still very discretionary by the Courts, which may continue to lead to some unpredictability of Court decisions. Click here for the official government explanation on child mobility and mobility.
Calgary and Vancouver Mobility and Relocation Lawyers assist their Clients to understand the changes that are happening in this highly emotional and contentious area of law, and the many principles and specific factors a Court will look at in deciding this issue if parents are not able to agree on it themselves.