Thanks to the new Divorce Act, the following cross-examination will never again take place in a Canadian courtroom:
LAWYER
If the judge decides you can’t take the children with you, will you still move away?
PARENT
I guess so. It’s a great new job opportunity overseas.
LAWYER
Aha! So your kids don’t really mean that much to you?
PARENT
Well, now that you put it that way… maybe I wouldn’t go.
LAWYER
I see. So you’re telling me this job opportunity isn’t so great after all!
This no-win line of questioning is known as the classic “double-bind,” because no matter which way you answer, you end up looking bad. It’s considered to be a nasty, fatuous rhetorical device, and in very poor taste, so s.16.92(2) of the new Divorce Act says it can no longer be done. It was already prohibited in most provinces, and this should be the final nail in its coffin.
The issue of whether one parent can move away with the children used to be called “mobility,” but under the new Divorce Act it’s called “relocation,” which is defined as a change in residence “likely to have a significant impact” on the child’s relationship with the other parent. There are new procedures that must be followed.
First of all, the parent who wants to relocate must give the other parent 60 days prior notice, and the non-moving parent has 30 days to respond. If both parents have “substantially equal” time with the kids, then the parent who wants to move has the burden of proving that taking the kids with them would be in their best interests. On the other hand, if the moving parent has the kids the “vast majority” of the time, then it’s the non-moving parent who must prove the move would not be in the kids’ best interests.
The kids’ best interests are determined by the s.16(3) general test, which includes things like the “nature and strength” of the child’s relationship with each parent, and the willingness of each parent to “support the development and maintenance of the child’s relationship with the other.” Plus, s.16.92(1) lists additional factors specific to relocation, such as: the reasons for it, its impact on the child, and each parent’s track record in complying with their family law obligations and the likelihood of future compliance. Bottom line: it looks like relocation cases will continue to be very fact-specific.
Another new development is that under s.16.95 the parent who moves away might have to pay all or most of the non-moving parent’s expenses “relating to the exercise of parenting time.” Flights overseas are expensive. And if, Heaven forbid, Elon Musk and his partner Grimes split up, and he takes their son to Mars, travel expenses could get quite high.
“Family violence” has a broader definition under the new Divorce Act, and now includes things like “a pattern of coercive and controlling behaviour,” “financial abuse,” and “threats to kill or harm an animal.” And if someone has been violent, they can get credit for trying to fix the problem by taking anger-management courses and the like: under s.16(4)(g) the court, in considering the impact of family violence, shall take into account “any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child.”
“Custody” has been re-named “decision-making responsibility,” which will save lawyers the trouble of having to explain to clients what it is. Whether the new name will reduce litigation remains to be seen. The spheres of power are the almost the same: “health” and “education” are unchanged, and “significant extra-curricular activities” is specifically listed. However, “religion” is now part of a set of four powers, the other three being “culture,” “language,” and “spirituality.”
Unless the circumstances of a case are such that it would “clearly not be appropriate to do so,” lawyers now have, under s.7.7 (2), a duty to encourage clients to attempt resolution through a “family dispute resolution process.” This is defined as “a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law.” With the monumental court backlog everyone is now facing, hopefully, more people will try this.
For more information about out-of-court dispute alternatives, my website has a helpful, concise description of your options to help you move onto the next phase of your life, without engaging in a protracted, expensive court battle.
For advice on family law issues and fertility law issues, contact Shirley Levitan.
