As of March 18, 2013, the Family Relations Act (“FRA”) was replaced with the Family Law Act (“FLA”). Sweeping changes came into effect under the new legislation affecting all aspects of family law. Amongst the many changes is the process by which parents can now move away and change the primary residence of the child.
The FRA did not specifically address child relocation and the case law in this area was often unclear.
The introduction of the FLA containing provisions dealing specifically with child relocation is intended to provide some clarity and certainty in this area. It offers this step-by-step process to resolve child relocation issues:
- Firstly, the legislation treats parents who have a court order or written agreement respecting parenting arrangements or contact time with a child different than those who do not have such. If there is an order or written agreement, whether interim or final, the guardian who desires to relocate with the child must give to all other guardians and persons having contact with the child a minimum of 60 days’ written notice of the date of relocation and the proposed location.
- The guardian who gave the notice of relocation must use his/her best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation.
- If within 30 days of receiving the notice to relocate, the non-relocating guardian does not file a court application for an order prohibiting the relocation, the guardian who gave the notice may relocate with the child to the proposed destination on or after the date set out in the notice.
- If the non-relocating guardian makes an application to court for an order prohibiting the relocation of a child, the court will need to assess:
- the best interests of the child;
- whether the proposed relocation is made in good faith; and
- whether the relocating guardian proposed a reasonable and workable arrangement to preserve the relationship between the child and the non-relocating guardian, as well as other persons who are entitled to contact with the child or have a significant role in the child’s life.
- If the court is satisfied that the aforementioned factors are met, then it may dismiss the application prohibiting the move and allow the guardian to relocate with the child.
- If there is no written agreement and court order respecting parenting arrangements or contact with the child, the child’s guardian who desires to relocate with the child must apply to Court for a relocation order.
- In these applications the court applies the same test and considers the same factors as those set out for applications made by a guardian to prohibit a proposed relocation with the child set out in point 4 above.
- If relocation is permitted, the court may make orders necessary to ensure that the relocating guardian complies with the terms of the order permitting the relocation, which is intended to ensure the relocation is facilitated and the relationship between the child and the non-relocating guardian is preserved.
This more organized and systemized approach is intended to reduce the amount of cases that go to litigation on parent mobility and child relocation issues. The process is set out in the legislation for parents to follow. Parents who do not object to the relocating parent moving away with the child can simply acquiesce to the proposed relocation by not doing anything after receiving the written notice. Parents who do not object to the relocation but require certain measures to be in place to ensure that his/her relationship is preserved with the child will have an opportunity to resolve such matters with the other parent outside of court as the parents are required to use best efforts to resolve such disputes. It is only if such efforts cannot resolve the matters in dispute that either parent may bring an application to court.
Whether this new scheme will actually reduce the amount of cases that go to litigation on parent mobility issues is yet to be seen. It nonetheless can be said that these changes are significant improvements to our legal system in dealing with the new challenges that arise from the surge of globalization and the increasing demand for freedom of mobility.
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