Overview

In relocation cases, the court’s main focus is on the best interests of the child. When assessing the best interest of the child, the court considers several factors. These may include:

  • The Child’s Relationships: The court examines the child’s relationships with both parents, siblings, and other important people in their life.
  • The Child’s Age and Needs: The age and specific needs of the child are taken into account. For instance, a teenager’s wishes may be considered more seriously than a young child’s.
  • The Impact on Child: The court evaluates how the move may affect the child emotionally, mentally, and physically. This includes considering the quality of education, healthcare, and social opportunities in the new location.
  • The Reasons for Relocation: The parent seeking to relocate must provide valid reasons for the move, such as a job opportunity or family support. The court assesses the sincerity and necessity of these reasons.
  • The Existing Custody and Access Arrangements: The existing custody and access arrangements play a significant role. The court considers how the move may affect the child’s ability to maintain a relationship with the non-moving parent.
  • The Parent’s Relocation Plan: The parent proposing the relocation should present a detailed plan for how they will facilitate the child’s relationship with the non-moving parent, such as visitation schedules or digital communication.

After considering all of the relevant factors, the Court will make a decision based on what it believes is in the best interest of the child. This decision can vary in each case and is not solely based on the wishes of the parents.

The Child’s Best Interests For Relocation Under the Divorce Act

Section 16 of the Divorce Act makes clear that the Court must only consider the best interests of the child when making any form of parenting order.

Primary consideration must be given to the child’s physical, emotional, and psychological safety, security, and well-being.

A list of non-exhaustive factors that the Court must also consider are set out in s. 16(3) which are as follows:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

  • (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  • (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  • (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
  • (d) the history of care of the child;
  • (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  • (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  • (g) any plans for the child’s care;
  • (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  • (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  • (j) any family violence and its impact on, among other things,
    • (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    • (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
  • (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Section 16.92(1) of the Divorce Act sets out a non-exhaustive list of additional factors to be considered in determining what is in the child’s best interests when deciding whether to permit a parent to relocate with a child of the marriage. These factors are as follows:

Best interests of child — additional factors to be considered

  • 92(1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
    • (a)the reasons for the relocation;
    • (b)the impact of the relocation on the child;
    • (c)the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
    • (d)whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
    • (e)the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
    • (f)the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
    • (g)whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, the Supreme Court of Canada clearly articulated that the focus must be the best interests of the child regarding the child’s needs and the ability of the respective parents to satisfy or meet those needs. Courts must have regard for the existing parenting time and decision-making arrangements in place, the views of the child, the impact or disruption to the child arising from a relocation and the desirability to strive for “maximum contact” between the child and both parents: Goertz, at para 49.

The notion of “maximum contact” has evolved with time and given the recent amendments to the Divorce Act in 2021 has been recently referred to as “maximum parenting time” principle: Periera v. Ramos, 2021 ONSC 1737.

In short, the Court must focus on the child’s best interests which include their physical, emotional, psychological well-being, and overall happiness.

The Child’s Best Interests For Relocation Under the Children’s Law Reform Act

Pursuant to s. 39.4(3) of the Children’s Law Reform ActCLRA”, in determining whether to permit the relocation of a child, the court shall, in order to determine the best interests of the child, take into consideration the factors set out in s. 16 of the Divorce Act as noted above, which are also set out in s. 24 of the CLRA, as well as the following additional factors:

  1. the reasons for the relocation;
  2. the impact of the relocation on the child;
  3. the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
  4. whether the person who intends to relocate the child has complied with any applicable notice requirement under [s. 39.3of the CLRA or s. 16.9 of the Divorce Act] and any applicable Act, regulation, order, family arbitration award and agreement;
  5. the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
  6. the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
  7. whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.

Further, in determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child: CLRA, s. 24(5).

In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child: CLRA, s. 24(6).

If you are considering making a claim for relocation or defending against a claim for relocation, do not hesitate to contact our office via e-mail or at 647-880-5832 to better understand how the above-noted factors apply to your family.

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