When lawyers plead cases and settle cases in family law, we are generally focused on the major issues that our clients are facing, namely, decision-making responsibility, parenting time, child support, spousal support, property issues and a restraining order. These issues take up most of our time and effort, but we are often confronted with the need to address some of the smaller orders that form part of any standard agreement or court order. These terms, such as mobility clauses, identity documents, travel permissions, restricting change of name, to name just a few popular ones, are often the sticking terms that clients struggle with, which ends up making the difference between having a final agreement/order and proceeding to a motion or trial.

This blog will focus on some of the more common clauses that form part of the terms of an agreement, minutes of settlement and court orders. As with all of my blogs, I cannot provide a comprehensive assessment of all the possible ancillary clauses that could form part of any agreement or order. As we are all struggling with maximizing our time, generally speaking, we do not need to “re-invent the wheel” and craft our own wording of these clauses. Sample clauses exist in the standard separation agreement in DivorceMate, the suggested clauses that referenced in AFCC Parenting Guide, and in the standard clauses that are provided to lawyers and by self-represented litigants on the Ministry of Attorney General/SCJ/OCJ website.

As always, a word of caution to my blog-readers. It is important for lawyers and litigants to appreciate that, after spending most/all their energy on the major issues, they should try their best to not let a disagreement on the smaller terms scupper a good deal. I am not suggesting anyone willy-nilly agree with their opponent, just to settle; rather, don’t let a resolvable issue be the deal-breaker. Just give it give the extra effort needed to resolve these pesky little issues.

Mobility Clauses

One of the more contentious issues over the last 10 years or so has been the issue of the moving children to another city, province or country, following separation and/or divorce. Once free from their former partner, people often decide to recouple and their new partner or their new-found freedom from their former partner gives them the desire to start fresh somewhere else. I have seen clients who are not terribly attached to the regular routine of seeing their children every other weekend, or whatever the parenting time regime is, become completely focused on their children once the primary residential parent decide they wish to relocate.

Rather than discuss the issue of mobility, and how to either successfully argue or defend a claim for relocation (which is the subject of an earlier blog), I want to focus on preventative measures to same, or more accurately, how former couples will address it should the subject come up.

But please understand that there’s a difference between moving your children within 30-45 minutes of their current address, and moving them hours or days away. Under the former, the moving spouse will often bear the responsibility for the new pick-up-and-drop-off consideration, as they choose to move, but not always. Sometimes, former couples simply agree to find a mid-way point for pick up and drop-off, and perhaps adjust support payments take into consideration extra travel costs associated with the move.

However, what do you do when the move will take them to a different part of the province, or quite often, a different part of the country. It is crucial for separating parents to include a standard relocation clause, such as one of these clauses as set out the AFCC Guidelines:

Relocation

Neither parent may change their place of residence more than X kilometers from their present location within the city of [insert city], without providing the other parent with 60 days’ notice of the proposed move and obtaining the written consent of the other parent or a court order to allow the move. The notice must include the location of the proposed new place of residence, the date of the proposed move, and, if necessary, a proposal for modification of the parenting time arrangement.

Alternative for Relocation

Parent A, with whom the child(ren) have their primary residence, may change the children’s place of residence from the city of [insert city], but will not move the children more than ten miles from the present location. If Parent A proposes to change the child’s place of residence, they must provide Parent B with 60 days’ notice of the proposed move. The notice must include the address of the proposed new place of residence, the date of the proposed move, and if necessary a proposed parenting time arrangement.

If Parent A and Parent B cannot agree on revised parenting arrangements that may result from one parent relocating, they will use the Family Dispute Resolution process set out in this document to resolve all issues with respect to the proposed move.

It is important that any clause you use has three critical components:

1. defining what relocation means;
2. spelling out the dispute resolution mechanism; and,
3. the time frames within which to trigger both 1 and 2.

Identity Documents

Following the Covid-19 pandemic, I have seen a rise in agreements and orders ensuring that both parents having the right to carry the children’s identity documents, which includes their passports, birth certificate, health card, immunization status card, SIN card, etc. In the past, this was a non-issue, but with the rise of competing interests about immunization, vaccination and children’s healthcare (which we will not relitigate in this blog, please and thank you), it is important to define:

1. Who will hold onto the original documents?
2. Under what circumstances will one parent make the documents available to the other parent?
3. Under what circumstances will one parent return the documents to the other parent?
4. Who will pay for the cost of copying and/or notarizing the documents?

There are no right or wrong answers – it depends upon the parents and what works best for them to minimize conflict and exposure to conflict by the children – but I recommend the following clause as a starting point for consideration:

Identity Documents

The Mother/Father shall retain the children’s original identity documents, including, but not limited to, their original passports, birth certificates, SIN Cards, OHIP/Health Cards, and immunization records.

The Mother/Father shall provide a copy of such documents to the other parent within 14 days of execution of this Agreement.

If the other parent requires the original version of any identity document, the Mother/Father shall forthwith make the said document readily available to the other parent. That parent shall then return the original identity document forthwith (within 24 hours) to the Mother/Father once the need for the said document has been completed.

Travel Permission

At the same time as we have since a rise in disputes about the children’s identity documents, we have seen parents have major arguments over travel. Judges have regrettably been forced to adjudicate last minute travel plans for children – usually for Christmas holidays, March break, and at the beginning of the summer vacation period – often with little to no substantial rationale to oppose the trip.

Quite often, the guiding principle is that if the trip benefits the children, the courts will side with the travelling parent. But if the travelling parent has not taken into consideration the impact of the trip on the non-travelling parent, I have seen people cry in open court when a judge tells them they can go on the trip, but not with the children.

So, how do you prevent such problems? You can never completely prevent them, as the facts of the case will often dictate the underlying conflict in family law matters, but having clauses a set out below in your order or agreement, which spell out the mechanism of planning and going on such trips, alleviates the concerns:

Vacations and Travel

If the mother/father plans a vacation with the children, that parent will give the other parent at least 30 days’ notice before the planned trip, providing the flight information, the trip itinerary, as well as contact information for the children during the trip. The travelling parent shall provide the other parent with the necessary travel permission letter, as provided on the Canadian Department of Justice website, which the non-travelling parent shall sign within 3 business days of being presented with the form.

Alternative for Travel

Where Parent A or Parent B plans international travel with the child(ren), that parent will prepare, for the signature of the other parent, a consent letter proving that the child(ren) have permission to travel. The other parent will not unreasonably refuse to sign the consent letter.

Again, notice the now familiar and common features of such clauses: communication in advance, setting out the time frame for notice, and spelling out how the traveling parent will keep the non-travelling parent aware of what is happening

Some parents go a further step. If there are concerns about travelling to places which may run the risk of the children not being returned to Canada, extra measures may be necessary:

Restriction on Travel

The child can only be taken outside of Ontario with the express written permission of both parents, and no permission will be given for a trip of more than 14 days. The parents both agree that for the purposes of the Divorce Act and the Hague Convention on Child Abduction, the children’s habitual residence will remain Ontario, and that this will only be changed with permission of a court order or the explicit agreement of both parents.

It is trite to say that should the travelling parent be considering travelling to a country that is not a signatory to the Hague Convention, especially with younger children, or where the dispute about decision-making and parenting time is unresolved, or has only recently been resolved, the non-travelling parent should exercise extreme caution.

Restricting Name Changes

Finally, one of the more minor clauses that does not get a see a lot of litigation, but is often the source of much consternation between separated parents during negotiations, is the name change clause. As a means of avoiding a problem that does not exist, some lawyers have resorted to leaving that clause out. But all it takes is even a whiff of a possibility that that one parent – usually the mother – mentioning that she may change the children’s surnames in the future will completely undo all of the hard work to resolve a dispute in its totality.

Some judges do not pay much attention to these clauses, where others give it a lot of consideration. I am in the later group. A child’s name is a key component of them knowing who they are, and as such, it is critically important to preserve how they are to be called, now and moving forward, as it has a significant impact on the emotional security and well-being of that child in accepting and appreciating their self-identity.

As such, as much of a pain in the butt it may be to raise the issue, it is necessary to address it in any order or agreement, especially with younger children involved. Have the discussion before the agreement is signed, rather than litigating the issue years after when it may be too late to address it with a court. Be simple and direct in your wording:

Change of Name

Neither party shall change the children’s first, middle or surname, without the other party’s express written consent.

Conclusion

Having negotiated thousands of agreements and minutes of settlements into court orders, I cannot emphasize enough of the importance of taking your time to go through each and every clause with your client. There is a natural inclination to simply focus on the “fab-five”
topics (DMR, PT, child support, spousal support and property), but if you do not look after the smaller clauses, the ones that may not matter to you but mean a lot to your client, you are not doing your job as a family law lawyer, and are simple inviting complaints about your service, which negatively impacts your business and your reputation.

This is why when clients call me and ask for “quick and cheap legal services,” I cannot help them, and cannot set a time frame and price, because until I know what is important to them, or what may be important to their former partner, I cannot possibly know how long it will take, or how much it will cost. As it is often said, the devil is in the details, especially the small ones.

Remember, every case is unique, just like you are. If you are facing real legal problems, you need the right legal solutions. Please contact Runco Law at 289-799-3080 or email me at carm@runcolaw.ca