Month: May 2021

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Relocating a child

In Nova Scotia there are differences in the test Nova Scotia Courts apply to married versus unmarried parents of a child when one parent wants to relocate with the child.

Married parents who are not separated or divorced continue to be governed by the Divorce Act (recently amended) while parents who were not married are governed by the Parenting and Support Act.

Under the Divorce Act, a person who has parenting time or decision-making responsibility in respect of a child and who intends to relocate must provide notice to any other person who has parenting time or decision making responsibility, or contact under a contact order. The Justice Canada provides a form for the notice required at https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html.

Section 16.92 of the Divorce Act sets out factors to be considered for relocation applications. It also establishes that “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“.

This factor which is prohibited from consideration is a change from the way Nova Scotia handles relocations previously under the Divorce Act and the Parenting and Support Act.

The Divorce Act can be reviewed at https://laws.justice.gc.ca/eng/acts/D-3.4/rpdc.html while the Parenting Support Act is available at https://nslegislature.ca/sites/default/files/legc/statutes/parenting%20and%20support.pdf

If you or someone you know is considering a relocation it is important to understand the burden’s, tests and timelines under the applicable legislation. We would be happy to provide advice.

Sincerely,

Philip Whitehead

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Changes to the Divorce Act

On March 1, 2021 changes to the Divorce Act came into effect which addressed the need to recognize, codify and provide remedy for family violence.

“Family Violence means any conduct, whether or not the conduct constitutes an criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child the direct or indirect exposure to such conduct -”

Family violence is recognized as including:

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse; 

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life; 

(f) psychological abuse; 

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

The changes also include changes in terminology and approach from “Custody and Access” to “Parenting Time” and and “decision making”, and include provisions for contact time by a non-parent (grandparent or other involved person).

For more information about how these changes may affect your situation, give us a call, or review the changes at https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/index.html