Canadian Lawyer

November 2021

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26 LEGAL REPORT FAMILY LAW relocation date, the new address and other contact information as available, and a proposal as to how parties exercise parenting time, decision-making responsibility or contact following the relocation. "The relocation provisions are 'significant' and have come up in custody cases since the Act came into effect," says Bala. "Judges have said, 'if you don't give the notice, we're not going ahead with this.'" Second, "if one parent has the child the vast majority of the time, there's a presump- tion that the child can move. And if the parents have the child roughly equal time, there's a presumption against the move." In December, the Supreme Court of Canada will hear a trilogy of family law cases concerning child custody, with two of them involving contested relocations. Barendregt v. Bradley and Kreke v. Alansari both concern, at least in part, a mother's ability to relocate with children. (The third appeal, in B.J.T. v. J.D., engages the question of how the "natural parent" factor should be consid- ered in determining the best interests of the child, in a case in which a father in Alberta is fighting a maternal grandmother in Prince now litigation about vaccination, he adds. At the same time, the legislation is part of a process of cultural change that has provided an opportunity for lawyers, judges, and also court administrators "to continue to focus on non-litigious dispute resolution." Changes of residence and relocation The amended Divorce Act created a new framework for changes of residence and relo- cation, including written notice of changes in residence/relocations to be exchanged between parties, "best interest" criteria for the court to consider, and burdens of proof on relocating parents. The Act and regulation require that a person who has parenting time or deci- sion-making responsibility "in respect of a child of the marriage" must notify "any other person who has parenting time, deci- sion-making responsibility or contact under a contact order in respect of that child of their intention" at least 60 days before an expected date of a proposed relocation. A party's notice must include the expected 2021 decision in Colucci v. Colucci, he says. Kniznik, too, notes the appellate court decision in Knapp v. Knapp and Justice Benotto's comment that "It is always prefer- able — and in the best interests of the chil- dren — that the parenting plans be devel- oped by the parents." Judges "want people to figure these things out without court intervention," Kniznik says. The COVID-19 pandemic has "had a huge impact on how family law is practised," he adds. As a result of court closures, many "people are focussed more on resolution, out of the practical inability to access courts" due to case backlogs. "It's forced a lot more people to try to resolve cases" out of court, and now courts can point to the amended legislation when deciding on parenting time and more. Yet the pandemic has also seen more high-conflict cases in the courts, says Bala. Although there has been more mediation, the pandemic has created social anxiety and scope for disputes about online versus in-person schooling, safety and health protocols, and "The legislation encourages significant contact with each parent, and … the court upheld equal parenting time and equal responsibility for decision-making." Nicholas Bala, Queen's University CONVENTION ON THE RIGHTS OF THE CHILD Canada is a signatory to the UN Convention on the Rights of the Child, which sets out children's civil, political, economic, social, health, and cultural rights. 1989 Convention is signed in New York by 140 states 2021 196 countries are now party to it, including every member of the United Nations except the United States

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