Canada
How can you prepare 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 parliament. They are considered to be seperate states. Federal laws (for instance the federal Divorce Act) apply for 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.
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 exercise joint custody.
The parent who, ater a custody decision, does not have custody still has all the other rights and responsibilities of parental authority (e.g., education, providing food, decisions about health care). The parent who does not have custody must be consulted on all major decisions concerning the children.
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 cary 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 acces to the child.
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 recommend that you have the letter witnessed by a notary public, so that border officials will be less likely to question its authenticity.
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, your can add a child’s name to the passport system lookout.
Child relocation: Canada
If a parent has decision making authority, he or she may relocate a child to another jurisdiction if the other parent does not object despite notice, or if she or he has a court order.
Substitute permission
Both the Supreme Court of Canada and the Ontario Court of Appeal have decided that a custodial parent cannot automatically move a child anywhere without the other parent’s cosent. The decision to allow a child to be moved must be made in the best interest of the child.
If parents can not 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 prevent 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.
An out-of-province relocation has been permitted where:
- the custodial parent’s reasons for relocation are relevant to their ability to meet the child’s needs, and
- it was either possible to facilitate continued access to the other parent, or the other parent did not have a positive relationship with the child.
Courts are called upon to make an educated prediction as to the best interests of the children, based on evidence of their pre-relocation lifestyle and evidence of what the parents believe will transpire after relocation if it is permitted (SSL v JWW, 2010 BCCA 55).
In court procedures the assessment of the child’s best interest is the focus, rather than the rights and interests of the parents.
If the relocation prevents the child from having a relationship with one parent, it may be refused. The Courts of Appeal in both Alberta and British Columbia agree that more weight must be given to the parent-child relationships over other competing interests in relocation decisions. This is because they are primarily taking into account the impact of the change on the child, as opposed to the impact of the change on the parents. The best interests of the child must prevail in relocation decisions (RJF v CMF, 2014 ABCA 165; Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230). Judges generally act to minimize the potential disruptions to the stability of the child’s life after separation.
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 Libanon 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 for a voluntary return and wait 2 weeks 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 can not 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 procedeedings. The court procedure will take more then 12 weeks. The appeal can take 3 to 6 months. There are special judges, 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 particular case. This can be done through a child interview with the judge, an expert report or by appointing a legal representitive for the child.
Mediation
There are no mediation services forms or any other forms of alternative dispute solution available for this issue.
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 occuring to the child.
If the abducting parent does not volutarily comply with a return order, the other parent can apply for enforcement.
There are several possible coersive 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.
There are several measures available to protect the child prior and during the return proceedings:
- injuctive orders on the alleged abducting party prohibiting certain forms of conduct e.g. violence, drinking etc.
- placement of the child in foster care
- placeent of the child in state care
- supervision of the alleged abducting party’s care of the child by a social / welfare agency.
Legal aid
You can apply for reduced rate lagal 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 (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 casse (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
Passport Canada System Lookout List
www.canada.ca : To register your child on this list and to prevent unauthorized passport aplication
Canada – Ontario:
Implementing act
www.ontario.ca : Children’s Law Reform Act
Central Authority
www.ontariao.ca : Ministry of the Attorney General, Central Authority for Ontario
Subsidized legal aid
www.legalaid.on.ca : Legal Aid Ontario
Canada – Quebec:
Implementing act
www.canlii.org : Act respecting the civil aspects of international and interprovincial child abduction
Central Authority
www.justice.gouv.qc.ca: Central Authority at the Ministry of Justice
Subsidized legal aid
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...
