Canada
How can you prepare for a child relocation from or within Canada? What if your child has been relocated to Canada without your consent?
Canada consists of several provinces and territories, each of which has its own government and legislature. They are separate states, and by virtue of the constitution, the provinces and territories have separate powers to pass certain types of laws from the Federal Government.. Federal laws (for instance the federal Divorce Act) applies to all provinces and territories of Canada.
Canada is a signatory to the Hague Convention on Child Abduction.
We will explain what that means for your options.
Country Reporter:
Max Blitt
Max is a an associate of the law firm of Spier Harben. He has handled many child abduction cases, involving a wide ranche of different countries.
He is a member of the International Academy of Family Lawyers (IAFL).
Max has volunteered to keep this page about Canada up to date.
Lawyers and mediators in Canada
We provide a list of lawyers and mediators in Canada who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental authority: Canada
Since March 1, 2021, the Divorce Act no longer uses the terms “custody” or “access”. The law now uses the term “parenting time” to describe a divorced parent’s relationship with a child of the marriage. However, marriage is not a requirement to obtain custody. Parents generally exercise joint custody with some exceptions that relate to children born out of wedlock.
The parent who, after a custody decision, only has access or visitation rights still has the right to request information regarding the child (e.g., education, health care) and continues to have a responsibility to provide for the child. The court may order that the parent who does not have custody must still be consulted on all major decisions concerning the child, but commonly allow the custodial parent to have the final say if there is disagreement.
The court can make parenting orders, contact orders (about visitation and information), decision making orders and orders about the physical residency of the child. The physical residency can be granted primarily to one of the parents or can involve a sharing of time between the parents.
Traveling with children: Canada
When traveling abroad it is recommended that you carry a consent form that is signed by the non-accompanying person / organization with the legal right to make major decisions for the child, and also by any non-accompanying parent who has access to the child. See https://travel.gc.ca/travelling/children/consent-letter
The signing of a consent letter may be witnessed by anyone who has attained the age of majority (18 or 19, depending on the province or territory of residence). However, is it strongly recommended that you have the letter witnessed by a notary public, so that border officials will be less likely to question its authenticity. Both parents should retain a copy of the consent letter in the event that there is a dispute as to whether it was open ended or for a finite period of time.
Besides that, it is recommended that you contact the airline, bus, train or other transport company you will be using to check its policies and regulations for child travellers.
Prevention
If you want to prevent the other parent traveling with the child, you can add a child’s name to the passport system lookout. For tips on preventing a child abduction see www.childabduct.com.
Child relocation: Canada
A parent may relocate a child to another jurisdiction if the other parent does not object after being served with the appropriate notice under the Divorce Act, or if she or he has a court order.
Substitute permission
The Divorce Act provides that a custodial parent cannot automatically move a child anywhere without the other parent’s consent or a Court Order. The decision to allow a child to be moved must be made in the best interest of the child which factors are now set out in the Divorce Act.
If parents cannot reach an agreement on the relocation and its effects on the visitation, the departing parent can go to court to get permission to relocate and the other parent can go to court to ask for a prohibition on relocation or even ask for a change in custody to prevent the child from being moved.
Criteria
The leading case on child relocation is Gordon v Goertz, [1996] 2 SCR 27. In that case, the Supreme Court of Canada set out a number of factors that the moving parent must demonstrate to obtain permission for the relocation, most of which have been codified in the Divorce Act. Parents are advised to speak to legal counsel who are familiar with the case law that has evolved on relocation taking into account the provisions of the new Divorce Act which came into force in March 2021.
An out-of-province relocation will be permitted within Canada where:
It meets the requirements under each province or territories legislation. For example, British Columbia-Family Law Act, section 66; Manitoba Family Law Act, section 52; Prince Edward Island – Children’s Law Act, section 47; Alberta-Family Law Act, section 18 etc;
The Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22, stated the question is “whether relocation is in the best interests of the child, having regard to child’s physical, emotional and psychological safety, security and well-being”, the majority said. The analysis is highly fact-specific and discretionary, and the possibility for change on appeal is very narrow.
In court procedures the assessment of the child’s best interest is the focus, rather than the rights and interests of the parents.
The Court of Appeal of Alberta in Werry v. Kish, 2023 ABCA 70, recognized that there is no presumption favouring the primary parent. Stability, peace and reliability are crucial at a young age and further that a court exercises its discretion in mobility cases in favour of the least harmful situation for the child given the impact of the greater and lessening presence of each parent and the challenges involved in fostering parental relationships in those circumstances.
Divorce Act
In section 16.92(1) you will find a list of factors that should be taken into consideration, when authorising the relocation of a child, (together with the factors considered to determine parenting time):
(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.
The Divorce Act also mentions a factor not to be considered:
In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.
Child abduction: Canada
Hague Convention
Canada is a member of The Hague Child Abduction Convention. Canada also has bilateral agreements with Egypt and Lebanon that touch on family law matters.
Government
If you request the return of the child the Central Authority will contact the abducting parent to seek a voluntary return and wait a short period of time for a response before proceeding.
Court procedure
You can also choose to start a court proceeding immediately. If you don’t know the exact location of the child, you cannot yet ask for the return of the child, but the Central Authority can help you to locate your child. There is no obligation to have legal representation in return proceedings. The court procedure will take more than 12 weeks. The initial hearing process can take up to 3-6 months and an appeal can take 6 months or longer in addition. There are special judges, in each province or territory who have been appointed to have judicial communications with judges from other countries in any case, if desired.
Child participation
The court decides whether the child will be heard, based on the age and degree of maturity of the child. This can be done through a child interview with the judge, an expert report or by appointing a legal representative for the child.
Mediation
The Court of King’s Bench of Alberta offers Judicial Dispute Resolution (Judge assisted mediation) if the parties agree.
Execution
The court can direct who is to make arrangements for the return of the child on a case-by-case basis. The court can also make a decision about the costs relating to the return of the child. The government social / welfare agency and the police can be involved to ensure the safe return of the child. Protective orders can be requested to prevent harm occurring to the child.
If the abducting parent does not voluntarily comply with a return order, the other parent can apply for enforcement.
There are several possible coercive measures to enforce a return order:
• intervention by government agency (e.g. police, social welfare)
• removal of the child from the abducting party
• criminal charges
• an order placing the child under supervision.
Prevention
If you think your child is in Canada, but you do not know exactly where, the Central Authority can help you locate your child.
If you fear that your child will be abducted to another country, or otherwise disappear, various measures can be taken:
• child’s passports to be deposited with authorities
• alleged abductor’s passport to be deposited with authorities
• obtaining orders to prevent the removal of the child
• issuing border and/ or port alerts
• requiring the alleged abductor to report periodically to authorities
• requiring the alleged abductor to pay a bond / deposit
• temporary placement of child in institutional care
• ordering supervised access of the potential abductor.
There are several measures available to protect the child prior and during the return proceedings:
• injunctive orders on the alleged abducting party prohibiting certain forms of conduct e.g. violence, drinking etc.
• placement of the child in foster care
• supervision of the alleged abducting party’s care of the child by a social / welfare agency
• ordering the alleged abducting party to report to the police on a regular basis.
Legal aid
You can apply for reduced rate legal assistance with Legal Aid.
For more details: check the country profile of Canada on the website of HCCH.
Criminal law : Canada
Under Canada’s criminal code there are two offences, where there is a court order and where there is not (section 282 and 283 of the Criminal Code) that apply specifically to situations where a minor who is under 14 years of age has been abducted by a parent, guardian or person having lawful care or charge of the minor, with the intent of depriving the other parent of the possession of that minor.
Defences about consent, danger or imminent harm are applicable. A criminal complaint is required to start criminal proceedings.
The withdrawal of the case (by the Crown prosecutions) or the suspension of the case (by the court) is possible where the facilitation of return of the child is at issue.
Relevant websites : Canada
Permission form to travel with children
www.gc.ca : Consent letter for minors traveling abroad
National Centre for Missing Persons and Unidentified Remains:
http://www.canadasmissing.ca/index-eng.htm
Carry the proper identification:
http://www.cbsa-asfc.gc.ca/travel-voyage/td-dv-eng.html#_s3
Taking children on a plane:
http://travel.gc.ca/travelling/children/taking-children-on-a-plane
Canada’s missing children resource centre:
http://missingkids.ca/app/en/
Passport Canada’s System Lookout List
http://www.ppt.gc.ca/protection/16-.aspx?lang=eng
HCCH documents, https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction
R. Schuz, The Hague Child Abduction Convention: A Critical Analysis, Hart Publishing, (2013)
Blogs about Canada
60 days notice before relocating
60 days notice before relocating Valenzuela-Sone v. Barnachea, 2023 ABKB 495, held that the Court has jurisdiction, where appropriate, to grant an interim return-child order where habitually-resident-in-Alberta children have been relocated out of Canada in breach of...
The interests of children in the Divorce Act
Canada: The interests of children in the Divorce Act. The federal Divorce Act is relevant for legal proceedings about relocation of children. It tells us what the court needs to consider and it tells us how to correctly notify the other parent about the planned...
Habitual residence in appeal court
Habitual residence in appeal court If the court in Canada - Ontario made a decision about where the child has his or her habitual residence, the appeal court can intervene only if there is an obvious error in the trial decision that is determative of the outcome of...
Relevant case law for Canada
60 days notice before relocating
60 days notice before relocating Valenzuela-Sone v. Barnachea, 2023 ABKB 495, held that the Court has jurisdiction, where appropriate, to grant an interim return-child order where habitually-resident-in-Alberta children have been relocated out of Canada in breach of...
Barendregt v. Grebliunas
In Barendregt v. Grebliunas, the Supreme Court confirms the mobility framework set out in Gordon v. Goertz, (1996) 2 S.C.R. 27, as refined over the past two decades and as codified (largely) in the 2019 amendments to the Divorce Act. Supreme Court of Canada May 20...
No grave risk exception
No grave risk exception K.T. v. M.B., First instance court of Canada - Québec 30 June 2014, QCCS 3144 The parents are married and they have joint custody over the two children, age 11 and 13. The children have the French and Canadian nationality and they have lived in...
