Changes to the Divorce Act (Part II)

One of the most litigated family law issues has been that of mobility—i.e., a parent relocating with the child of the relationship to a new jurisdiction.  Relocation is defined as “a change in the place of residence of a child…that is likely to have a significant impact on the child’s relationship with the other parent”.

The new and improved Divorce Act sets out a detailed procedural and substantive regime to govern relocation/mobility cases.  

For example:

  • A parent who intends to relocate must give at least 60 days written notice to the other parent;
  • A parent who receives a notice of intention of the other parent to relocate with the child will have 30 days to serve a written notice of objection on the parent proposing to relocate or to make an application to the court objecting to the relocation of the child;
  • If a notice of objection is served, on the parent seeking to relocate with the child, that person is obliged to seek court approval for the move.

The judge is required to made a decision vis-à-vis relocation based solely on the “best interests” of the child.  The Divorce Act now provides criteria the judge must take into consideration when determining whether the move is in a child’s best interests:

  • The reasons for the relocation;
  • The impact of the relocation on the child;
  • The amount of time spent with the child by each person who has parenting time and the level of involvement in the child’s life of each those person;
  • Whether the person who intends to relocate the child complied with any applicable notice requirement;
  • The existence of an order or agreement that specifies the geographic area in which the child is to reside;
  • 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
  • Whether each person who has parenting time or decision-making responsibility has complied with their obligations under family law legislation, an order or agreement, and the likelihood of future compliance.

The Divorce Act amendments also establishes burdens of proof to apply to relocation cases:

  • If the parties have substantially equal time with the child, the party seeking to relocate with the child will have the burden of establishing that the relocation of the child is in the best interests of the child;
  • If the relocating party has the child for “the vast majority of the time”, the onus of establishing that the relocation is not in the best interests of the child will be on the objecting parent;
  • In any other case, both parties have the burden of proof, and there is no onus or presumption about whether or relocation should be permitted.

While there is no perfect scheme for addressing relocation cases, which almost always involve significant disruption for the child, whatever the outcome, the procedural and substantive additions to the Divorce Act governing relocation will at least be an improvement over the present legal quagmire. Having clear, child-focused presumptions about relocation and a clearer process will hopefully help to reduce uncertainty and litigation and help planning and settlements, though the new provisions continue to have discretionary elements.  As such, some uncertainty will remain in this area.

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How does one maintain one’s composure, one’s equilibrium during these challenging, difficult times? Everybody, to some degree or another, has been affected by this seemingly pandemic. It induces anxiety, depression, isolation, frustration. For me personally, I find that my ‘life force’ and my motivation are at a low ebb; my ‘joie de vivre’ has, in large part, been extinguished.

 

 

 

What I need to keep reminding myself of is the following:

 i) At some point life will   return to normal. Indeed, many pundits believe that the     Omicron wave could be the pandemic’s last stand. Historically, pandemics run their  course after two to three years;
 ii) I am not alone. Once again, my feelings of angst are shared by most people. I need to get out of my own head and empathize with all others who are struggling as much as me.

  iii) I need to practice gratitude. I need to be grateful for things I often take for granted: I have good friends; I still have work to be done; I can pay my bills.

 

I think a trick to surviving this dystopian era is to try to maintain ‘normal’ when all around is anything but. Maintain regular sleeping hours. Maintain regular eating habits. Get up in the morning, get showered and dressed and maintain your normal routines as much as possible. If normal routines are no longer possible, develop new, healthy routines. Even if one feels that there is not much point of getting out of bed in the morning, I think it is important to ‘fake it until you make it’.

 

In preparation for World War II, the British government produced a motivational poster to raise the morale of the British public. The slogan: “keep calm and carry on”. This slogan encapsulates the type of stoicism, the ‘stiff upper lip’ approach to times of adversity for which the British were renowned.
We are in times of adversity. The most any of us can do is to keep calm and carry on; and live our lives one day at a time, secure in the knowledge that, with time, life will improve.

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One significant change is that the Act abandons the concepts of “custody” and “access”.  These archaic terms had propriety connotations, leaving the impression that one parent would be the ‘winner’ of custody, and the other, the ‘loser’, afforded only the access rights of a ‘visiting parent’.  These misleading terms were the source of much unnecessary litigation and got in the way of settlement because of the emotional power behind the language. 

 

The new language of the Divorce Act speaks of “parenting orders” that allocate or schedule “parenting time”, and that allocate or share “decision-making responsibility”.  Parental decision-making authority is defined to mean the responsibility for making “significant decisions about a child’s well-being, including in respect of health, education, culture, language, religion and spirituality; and significant extra-curricular activities”. 

But just how significant are these amendments?  I mean a rose by any other name would smell as sweet.  At the end of the day, parental decision-making authority means the same as custody; and parenting time means the same thing as access.  What has changed is the riddance of the negative, emotionally fuelled connotations of the old vernacular. 

Arguably, however, the Divorce Act amendments encourage various forms of co-parenting—a broad social concept used by social scientists, family justice professionals and parents in many countries, premised on both parents being significantly involved in the care of children and co—operatively sharing decision-making.  Co-parenting is clearly different from the traditional model of sole custody to one parent and access to the other.

One change I personally would have liked to have seen in the amendments was the inclusion of a presumption of “equal parenting”.  The amendments do not go that far.  Indeed, in Canada approximately three quarters of children of separated spouses continue to have their “primary residence” with one parent (usually the mother) and only a quarter of children have “equal shared parenting” (which is defined as 40% to 60% of time with each parent). 

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