Today’s blog aims to clear up an understandable misconception around the scope of the term “decision-making authority”, as it relates to a parent’s court-granted entitlement to make decisions for their child – especially decisions to relocate.
The first thing to know, is that “decision-making authority” and “sole decision-making authority” are not the same thing. As the name suggests, it’s only when a court grants you sole decision-making authority (often pertaining to specified topics), that you can make decisions without the input of the other parent. You need to check your court order carefully.
Next, the mere fact you have such authority does not give unilateral right to move your child to a new place of your choosing – at least not without notifying and getting the consent of the other parent. That’s because the Divorce Act contains a provision requiring that you give detailed notice, and to do so well in advance.
All of this was explained in a very recent Ontario case called Nowlan v. Nowlan. The parents had met online and got married four months later. They separated when their daughter was one year old.
The father, who was a member of the Canadian Armed Forces, was stationed in Borden and then later Petawawa. The mother lived in the U.S. state of Virginia, where she’d obtained an order that the child should not be removed from Renfrew County in Ontario, at least until she and the father could sort out their custody and related issues. Pending that time, the father had been granted primary residence and joint decision-making authority over the child.
But much to the mother’s surprise, she learned (through an email from the child’s Ontario school) that the child was being transferred to a school in New Brunswick. It turned out the father had already moved her to New Brunswick several months before, to go live with his parents now that he had been re-stationed to Meaford. He had not bothered to give the mother notice of the move, much less obtain her consent or get a court order allowing for it. Nor did he respond to the mother’s inquiries, when she asked him about the surprise relocation.
At the mother’s behest, the court was asked to make a ruling to that the father had breached the prior non-relocation order that was in place.
The court readily agreed. It noted that s. 16.9 of the Divorce Act required the father, as a person with parenting time or decision-making responsibility, to provide at least 60 days’ notice to the mother of his intention to relocate the child. That notice must be in prescribed form, and must include the relocation date, the child’s new address and contact information, and a proposal for how parenting time/decision-making responsibility/ contact will be exercised post-relocation. And even with the required notice, the proposed relocation could only proceed if the mother did not object within 30 days, or if the court otherwise authorized it.
None of these steps had been followed. Indeed the father had simply engaged in some “self-help”, which the court expressly denounced. It came down hard on the father, stating:
While it is not unreasonable for Mr. Nowlan to believe that he had decision-making authority over Athena, whom had been living with him since August of 2021, it was unreasonable of him to believe that he had sole decision-making responsibility over her. The only order made that had ever granted sole decision-making authority to Mr. Nowlan was [a] temporary order [that ended] after Athena’s return to Canada.
… Mr. Nowlan was aware from at least July of 2023 that he would be going to Meaford in the new year. … Mr. Nowlan ought to have been consulting with Ms. Nowlan about what solution would be best for Athena upon his own relocation to Meaford, and if they did not agree on same, he ought to have brought his own motion on notice to her seeking an order authorizing him to relocate the child. He did not do so. Rather, without legal authority, and without either consulting with or seeking the consent of the other person with parenting time and decision-making responsibility over Athena, Mr. Nowlan agreed with his parents to relocate Athena to New Brunswick. Mr. Nowlan engaged in what is commonly referred to as “self-help”, which is not condoned by this Court. That he did so, moreover, in the face of an open file and on-going family litigation, defies comprehension.
I concur with Ms. Nowlan’s submission that, if Justice Cullen’s order is still valid, Mr. Nowlan is in breach of it, and Mr. Nowlan has failed to comply with subsection 16.9 of the Divorce Act.
While I also find that it is not unreasonable for [the grandparents] to believe that Mr. Nowlan had legal authority to transfer Athena to their care, the fact that nobody discussed this proposal with Ms. Nowlan remains highly problematic. [The grandparents’] persistent pattern of making decisions for Athena without legal authority or the consent of Ms. Nowlan is equally problematic. Again, this complete disregard for Ms. Nowlan’s rights is occurring in the face of ongoing family litigation.
For the full text of the decision, see:
Nowlan v. Nowlan, 2024 ONSC 4933 (CanLII), <https://canlii.ca/t/k6pjl>