CANADA Law and Practice Contributed by: Shannon Beddoe, Annabelle Lim and Susannah Mungall, McCarthy Hansen & Company LLP
2.3.3 Age/Maturity of the Child See 2.3.2 Wishes and Feelings of the Child ; the age and maturity of the child are two factors the court can consider when weighing the child’s wishes and prefer - ences about the relocation. 2.3.4 Importance of Keeping Children Together In determining the best interests of the child under Section 16 (3)(b) of the Divorce Act, courts must con - sider “the nature and strength of the child’s relation - ship with each spouse, each of the child’s siblings and grandparents, and any other person who plays an important role in the child’s life”. Courts have held that a child’s meaningful and close relationships with siblings, cousins, and friends is an important factor to consider in deciding whether to permit relocation. 2.3.5 Loss of Contact Loss of contact with the left-behind parent is an important consideration in relocation applications. However, the weight given to this factor can depend significantly on the history of care and parenting for the child. In cases where there is a history of shared parenting/roughly equal parenting time and the child has a close and meaningful relationship with both par - ents, loss of contact could be a serious factor weigh - ing against relocation. However, in cases where there is a history of one parent being the primary caregiver, and the child does not have a close relationship with the other parent, loss of contact with the non-moving parent may not be weighed as heavily. Under Section 16.92 (1)(f) of the Divorce Act, the court must consider 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”. 2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? Courts have typically considered the following factors as weighing in favour of relocation:
weight to the significance of a child’s wishes and feel - ings, the Ontario Court of Appeal in Decaen v Decaen , 2013 ONCA 218 considered the following factors at paragraph 42: • whether both parents are able to provide adequate care; • how clear and unambivalent the wishes are; • how informed the expression is; • the age of the child; • the maturity level; • the strength of the wish; • the length of time the preference has been expressed for; • practicalities; • the influence of the parent(s) on the expressed wish or preference; • the overall context; and • the circumstances of the preferences from the child’s point of view. Courts may ascertain a child’s wishes and preferences in several ways, including the following: • Voice of the Child Report: A report prepared by a neutral mental health professional or qualified assessor who interviews the child and prepares a report summarising the child’s views without mak - ing recommendations about what is in the child’s best interests. In Ontario, this is called a “Voice of the Child Report”. • Representation by a Children’s Advocacy Office: In Ontario, the Office of the Children’s Lawyer (OCL) may become involved to represent the child and/or provide the court with a report containing recom - mendations. Other provinces have child advocacy offices, although they are generally much more limited in scope than Ontario’s OCL. • Judicial Interviews: In very limited circumstances, a judge might speak directly with the child to under - stand their views and preferences, but this is quite uncommon. • Evidence From Professionals: Professionals who have worked with the child might provide evidence about the child’s views.
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