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In September 2020, the Ontario government introduced Bill 207 – the Moving Ontario Family Law Forward Act, 2020. If passed (as expected), this Bill will amend Ontario’s Children’s Law Reform Act (“CLRA”) and other Acts respecting various family law matters.

The proposed amendments are largely meant to bring Ontario legislation in line with the amended Federal Divorce Act, which will come into force on March 31, 2021. This will provide consistency for separated parents seeking to resolve family law issues regardless of whether they were married or not.

In particular, the Bill seeks to modernize language around the divisive terms “custody” and “access” to the more child-focused terms of “decision-making responsibility” and “parenting time”, both of which may be granted by a court under a “parenting order”. Access to a child by a non-parent will be changed to “contact” with a child and may be granted by a court under a “contact order”. In addition, the Bill is making changes to the family law appeals process.

Perhaps the most controversial amendments, however, are with respect to changes in residence or relocation of children, sometimes known as mobility issues in family law.

The amended legislation appears to make a distinction between more simple “changes in residence” and longer-distance “relocation”, defining relocation as a change in residence that is likely to have a significant impact on the child’s relationship with other people who have decision-making responsibility, parenting time or contact (under a contact order) with the child. 

The Ontario legislature is proposing to add new sections to the CLRA that will, for example, introduce notice requirements for those with decision-making responsibility, parenting time or contact with a child (under a contact order) who are looking to change residences or relocate, whether with or without the child. Such notice must be in writing, must set out certain information as prescribed in the legislation, and must comply with certain deadlines depending on the circumstances.

In the case of relocations, the amendments allow for the non-relocating person to object to the proposed relocation. If no objection is made in accordance with the legislation, the person who intends to relocate may do so as long as there is no order prohibiting the relocation.

For nearly 25 years, relocation issues have been governed by the Supreme Court of Canada’s decision in Gordon v Goertz, [1996] 2 SCR 27, which expressly states that when judges are considering the merits of such cases, the custodial parent’s reason for moving should only be considered in exceptional cases. Rather, the focus must be on the best interests of the child and not the interests and rights of the parents.

The amended legislation directs a court to consider the best interests of the child, as well as several other factors, including the reasons for the relocation, whether the person who intends to relocate has complied with the new notice requirements under the legislation, and the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside.

This amendment to consider the reasons for the move may reflect the fact that notwithstanding the Supreme Court of Canada’s direction in Gordon v Goertz, it has generally been disregarded by the lower courts.

The amendments also clarify the burden of proof in such cases. Where the child spends roughly equal time with each party, the party intending to relocate the child has the burden of proving that the relocation would be in the child’s best interests. Conversely, where the child spends the majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the child’s best interests.

Finally, if a party is successful and the court authorizes the relocation of a child, the court may also order that any increased costs relating to the exercise of parenting time by the person who is not relocating be apportioned between the parties. This may provide some relief to those who end up with increased costs from travelling longer distances or obtaining additional accommodations in the child’s new location in order to exercise parenting time.

If you would like more information about how the amendments to the CLRA may impact upon your family law matter, please contact me via email.

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