When a parent with primary decision-making responsibility for a child decides to relocate after a separation due to a new job, proximity to family, or a relationship, the move will certainly affect the access parent.
RECENT AMENDMENTS TO THE DIVORCE ACT
The law pertaining to the relocation of a child is found under section 16.9 of the Divorce Act. The new section 16.92(1) requires the court to consider additional factors when deciding whether a relocation should be permitted:
- The reason for the relocation
- The impact of the relocation on the child
- The parenting time and involvement that each person has with the child
- Whether the person planning the relocation has given the proper notice
- Whether there is a court order or agreement that says a child is supposed to live in a certain place
- Whether the proposal to change the parenting arrangement is reasonable, and
- Whether the people involved have been following their court order or agreement.1
The exceptions to providing notice prior to moving are 1) if you have permission from the court not to give notice if there is family violence, or 2) if you have a court order saying you do not have to give notice of a move.2
PARENTAL CHILD ABDUCTION WITHIN CANADA
In Canada, the most common form of child abduction is by a parent or guardian. The term parental child abduction refers to when a parent/guardian takes, detains, or conceals a child from the other parent/guardian. It is not uncommon for other family members to assist the abducting parent/guardian with removing or concealing the child3.
If the child is believed to have been abducted locally, it is important to contact local law enforcement immediately. The matter can often be resolved through the civil courts. As a parent/guardian, you can apply to the family court to have the child returned to you.
In Ontario, you will need a parenting order under the Children's Law Reform Act ("CLRA"). Sections 36 and 37 of the CLRA allow the courts to grant a parental order where the child is unlawfully withheld and to prevent unlawful removal of the child respectfully.4
If the child has been abducted to a different province, a parenting order or agreement is necessary to have any decision-making responsibility and parenting time arrangements enforced.5 If you do not have a parenting order or parenting agreement in place, you may need to apply for a parenting order in family court.6 The order should be obtained in the jurisdiction where the child resided, often referred to as the "habitual residence."
If you are divorced or getting a divorce, but a parenting order has not yet been made, the parenting order needs to be sought under the Divorce Act.7 If you already have a parenting order, you may be able to have it enforced in another Canadian province or territory. According to section 20(3) of the Divorce Act, the court can make a parenting order have legal effect throughout Canada.8
If you have an informal agreement in place, it may not be enforceable by the courts and therefore it is recommended that you apply for a parenting order pursuant to section 16.1(1) of the Divorce Act.9 If you are not getting a divorce, then provincial laws will apply.
RELOCATION OR PARENTAL ABDUCTION? - CASES TO CONSIDER
In R v Finck, OJ No 2692, the mother died almost one year after the birth of child and left instructions that her brother should have decision-making responsibility and assume parental responsibilities. The father commenced proceedings to alter the parenting order. Ultimately, parental responsibility was awarded to the mother's brother, with generous rights of access granted to the father. The father took the child to Nova Scotia and kept the child there until he was apprehended. The child was returned to the mother's brother and the father was charged with abduction in contravention of the parenting order with intention of depriving the legal guardian of possession of the child.
In Buckner v Card, 2007 ONCJ 51, the parties were the parents of a 22-month-old child. Since the child's birth, the mother had been his primary caregiver while the father exercised access on a casual basis. Without notice to the father, the mother had moved to Alberta with the child. The court granted the mother sole decision-making responsibility as she had been the child's primary caregiver. While the mother should not have moved unilaterally, the court found that she wished to move for legitimate reasons and not to frustrate the father's access. The father's proposed plan was to continue working full-time and he would delegate his childcare responsibilities to others during his work absence, which was considerable. The mother was better off in Alberta financially and the father's present accommodations and plans were "sketchy". It was not in the best interest of the child for the mother to be forced to return to Red Lake, Ontario. The distance (22-hour drive) was deemed not insurmountable for the father to exercise access. The court held it was in the child's best interests that he remains in his mother's care in Alberta.
In the recent case of Fawcett v Slyfield, 2021 ONCJ 459, the mother moved the children from Woodstock, Ontario to Manitoba following the parties' separation, over the objections of the father, without a written agreement or court order, and without making arrangements for any meaningful parenting time for him. While the father contested mobility and also decision-making and primary residence, the court ultimately allowed the mother to relocate with the children to Manitoba, pending trial.
PENALTIES FOR PARENTAL ABDUCTION
Parental abduction is a serious criminal offence and is governed by sections 281 and 282 of the Criminal Code. A parent or guardian convicted of abducting a child can face up to 10 years in prison.10 However, abduction does not automatically revoke the offender's right to access. Parental abduction will be considered in determining whether sole decision-making responsibility is appropriate. Canadian courts take a holistic approach in assessing what is in the "best interests of the child".11
1 Ibid at s 16.92(1).
4 Children's Law Reform Act, RSO 1990, c C.12, s 36-37.
5 "Child abduction by a family member" (26 October 2021), online: Ontario.
8 Divorce Act, RSC 1995, c 3 (2nd Supp.), s 20(3).
9 Ibid at s 16.1(1).
10 Criminal Code, RSC 1985, c C-46, s 281(a).
11 "Defining the Best Interests of the Child" (07 January 2015), online: Department of Justice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.