Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.))

Parenting Orders

Marginal note:Parenting order

• 16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

  • (a) either or both spouses; or

  • (b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

• Marginal note:Interim order

  (2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

• Marginal note:Application by person other than spouse

  (3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

• Marginal note:Contents of parenting order

  (4) The court may, in the order,

  • (a) allocate parenting time in accordance with section 16.2;

  • (b) allocate decision-making responsibility in accordance with section 16.3;

  • (c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

  • (d) provide for any other matter that the court considers appropriate.

• Marginal note:Terms and conditions

  (5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

• Marginal note:Family dispute resolution process

  (6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

• Marginal note:Relocation

  (7) The order may authorize or prohibit the relocation of the child.

• Marginal note:Supervision

  (8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

• Marginal note:Prohibition on removal of child

  (9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

Marginal note:Parenting time — schedule

• 16.2 (1) Parenting time may be allocated by way of a schedule.

• Marginal note:Day-to-day decisions

  (2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

Marginal note:Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Marginal note:Entitlement to information

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

Contact Orders

Marginal note:Contact order

• 16.5 (1) A court of competent jurisdiction may, on application by a person other than a spouse, make an order providing for contact between that person and a child of the marriage.

• Marginal note:Interim order

  (2) The court may, on application by a person referred to in subsection (1), make an interim order providing for contact between that person and the child, pending the determination of the application made under that subsection.

• Marginal note:Leave of the court

  (3) A person may make an application under subsection (1) or (2) only with leave of the court, unless they obtained leave of the court to make an application under section 16.1.

• Marginal note:Factors in determining whether to make order

  (4) In determining whether to make a contact order under this section, the court shall consider all relevant factors, including whether contact between the applicant and the child could otherwise occur, for example during the parenting time of another person.

• Marginal note:Contents of contact order

  (5) The court may, in the contact order,

  • (a) provide for contact between the applicant and the child in the form of visits or by any means of communication; and

  • (b) provide for any other matter that the court considers appropriate.

• Marginal note:Terms and conditions

  (6) The court may make a contact order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

• Marginal note:Supervision

  (7) The order may require that the contact or transfer of the child from one person to another be supervised.

• Marginal note:Prohibition on removal of child

  (8) The order may provide that a child shall not be removed from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

• Marginal note:Variation of parenting order

  (9) If a parenting order in respect of the child has already been made, the court may make an order varying the parenting order to take into account a contact order it makes under this section, and subsections 17(3) and (11) apply as a consequence with any necessary modifications.

Parenting Plan

Marginal note:Parenting plan

• 16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.

• Marginal note:Definition of parenting plan

  (2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.

Change in Place of Residence

Marginal note:Non-application

16.7 Section 16.8 does not apply to a change in the place of residence that is a relocation.

Marginal note:Notice

• 16.8 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to change their place of residence or that of the child shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

• Marginal note:Form and content of notice

  (2) The notice shall be given in writing and shall set out

  • (a) the date on which the change is expected to occur; and

  • (b) the address of the new place of residence and contact information of the person or child, as the case may be.

• Marginal note:Exception

  (3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections do not apply or may modify them, including where there is a risk of family violence.

• Marginal note:Application without notice

  (4) An application referred to in subsection (3) may be made without notice to any other party.

Relocation

Marginal note:Notice

• 16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

• Marginal note:Content of notice

  (2) The notice must set out

  • (a) the expected date of the relocation;

  • (b) the address of the new place of residence and contact information of the person or child, as the case may be;

  • (c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and

  • (d) any other information prescribed by the regulations.

• Marginal note:Exception

  (3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence.

• Marginal note:Application without notice

  (4) An application referred to in subsection (3) may be made without notice to any other party.

Marginal note:Relocation authorized

• 16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if

  • (a) the relocation is authorized by a court; or

  • (b) the following conditions are satisfied:

    • (i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in

      • (A) a form prescribed by the regulations, or

      • (B) an application made under subsection 16.1(1) or paragraph 17(1)(b), and

    • (ii) there is no order prohibiting the relocation.

• Marginal note:Content of form

  (2) The form must set out

  • (a) a statement that the person objects to the proposed relocation;

  • (b) the reasons for the objection;

  • (c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and

  • (d) any other information prescribed by the regulations.

Marginal note:Best interests of child — additional factors to be considered

• 16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

  • (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.

• Marginal note:Factor not to be considered

  (2) 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.

Marginal note:Burden of proof — person who intends to relocate child

• 16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

• Marginal note:Burden of proof — person who objects to relocation

  (2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

• Marginal note:Burden of proof — other cases

  (3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.