The Divorce Act Changes Explained
Best interests of child – additional factors to be considered
Existence of an order, arbitral award or agreement specifying geographic area
(Section 16.92(1)(e), Divorce Act)
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
What is the change
As part of its analysis of the best interests of the child in a proposed relocation, the court must consider the existence of an order, arbitral award or agreement that specifies the geographic area where the child must reside.
Reason for the change
Parents sometimes agree and courts sometimes order that a child must live within a specific geographic area, such as within 50 kilometres of the City of Ottawa. Parents may have negotiated this requirement in good faith, in exchange for other consideration. A court may have included the requirement for specific reasons. While circumstances related to the best interests of the child can change over time, such a term would be an important factor for the court to consider.
It is important to note that a clause related to the child’s place of residence is not necessarily the same as a non-removal clause, which would limit not only where a child can reside, but also whether the child can leave a particular jurisdiction for travel purposes. Non-removal clauses are very restrictive and are generally included in orders if there is a concern about child abduction.
March 1, 2021.
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