When determining which parent should have decision-making responsibility over a child, there is no presumption in favour of either parent following separation. The status quo is an important consideration when courts determine temporary living arrangements. However, courts have found that the importance of a pre-separation status quo can be tempered by section 20(4) of the Children’s Law Reform Act (CLRA). That section states:
“If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise”.
In cases, the courts have found this section preserves the parties’ de facto parenting arrangements, but at what point can the primary parent make unilateral decisions for the children, and does it mean a parent can change the place of the child’s residence?
In S.D. v C.H., following the parties’ separation, the mother lived with the children in Ontario. Later, the mother and the children travelled to Alberta, where they remained. The father commenced an application seeking the children’s return to Ontario. The mother raised a question about jurisdiction and alleged that Alberta courts had jurisdiction as the children had been residing there for five months with the father’s knowledge and consent. The father disagreed and maintained that he never consented to the children’s relocation.
The children had primarily been living with the mother since separation, and the father acquiesced to this arrangement even though he did not agree with the parenting time offered to him. Looking at section 20(4), the judge found that few authorities had interpreted that section. There was a particular lack of clarity on the issue of at what “point a parent with primary care is entitled to make unilateral decisions for the children and what impact that has with respect to s. 23(3) of the CLRA”.
The judge looked to Moniz v. Deschamps. In that case, after their separation, the parties adopted a schedule where the children spent equal time with each parent. Later, the mother agreed that the children would primarily reside with the father. There was no written agreement or court order in place. The father then unilaterally moved with the children from Kitchener to Hamilton. The father argued that the children had been living with him for approximately 14 months and that the mother acquiesced to that arrangement, and that following his move, the children became habitually resident in the jurisdiction where he was residing.
The court rejected this argument, warning about the impact of permitting a parent to change a child’s ordinary residence by physically removing a child without the consent or acquiescence of the other parent. Instead, courts need “to be vigilant about parents unilaterally taking children from a city or town where they have lived and relocating to another area of the province or country, far from where they have habitually resided”.
In Pearson v. Whittingham, the mother argued that she had de facto custody of the child. She claimed that without a court order or separation agreement that provided for parenting time or that prohibited a change of a child’s residence. The custodial parent would be entitled to determine the place of a child’s residence and to change that place. On that basis, the mother argued that there was no legal impediment to her moving the child from Ontario to Alberta.
Although section 20(4) of the CLRA was not referenced, Justice Murray found that the mother’s motion must fail. She stated that if the mother’s argument were accepted:
“… a parent, by adopting a non-confrontational course at separation and not immediately litigating custody or access, faces the risk that the parent who has possession of the child will unilaterally and without notice change the child’s ‘habitual residence’.”
Notably, the mother’s counsel did not suggest that the rights of the de facto custodian arise immediately after separation. Instead, they suggested that a significant period of time needed to elapse from the date of separation, during which a parent must acquiesce to a child remaining in the care of the other parent, after which the residential parent obtains authority. But in this case, the mother moved the child only two months after separation and then proceeded to conceal the move from the father. The judge did not believe that such a short period of time post-separation would give the parent the right to change a child’s habitual residence.
Justice Murray did comment that “where the de facto care period is much longer—for example, three years—then that may be sufficient to endow the residential parent with authority to make that decision without the consent of the other parent”. Moreover, Justice Murray also cited Gordon v. Goertz, noting that principles from that case have been applied to mobility issues. Ultimately, the judge did not believe that there was any presumption that a parent with decision-making responsibility could unilaterally change a child’s residence and the jurisdiction in which child arrangements are determined.
In S.D. v. C.H., Justice Fryer acknowledged that after separation, many parents end up making their own unwritten arrangements for the care of their children. One parent may be content to have the other have their primary residence with the children and make medical or education decisions without objection. The judge found this “informal arrangement may reflect parenting roles that existed before the separation”. Further, in this context, section 20(4) of the CLRA “codifies the parties’ informal arrangement subject to a court order”.
Similar to the judge’s comments in Pearson v. Whittingham, Justice Fryer agreed that parents would be surprised if their cooperative approach with the other parent to caring for their children could extend to “authorizing the de facto primary care parent to move from the province and to establish a new jurisdiction potentially outside of Canada altogether without their consent”. Similarly, in Clement v. Clement, the judge explained that section 20(4) prevents a parent from interfering with the de facto arrangements without a separation agreement or court order.
In this instance, the judge was not prepared to find that the father’s right to exercise decision-making responsibility for the children could have been suspended under section 20(4) of the CLRA. But even if it did apply to suspend his ability to make some decisions about the children, Justice Fryer did not find that his right to object to the relocation of the children was suspended since he had that right as a parent who had parenting time with them. If the mother had complied with her obligations, she would only have been permitted to move if she obtained a court order or the father did not object. However, he did not consent to the children moving to Alberta.
The CLRA can protect informal parenting arrangements and prevent a party from interfering with these arrangements when there is no separation agreement or court order. Parents cannot pursue a “self-help” remedy that removes a child from a parent with parenting time.
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