Area of Law: Family Law
Answer Number: 115
Can a parent who has custody move the children anywhere?Region: Ontario Answer Number: 115
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When a parent has sole or joint custody of the children, problems sometimes arise when that parent wants to move and take the children with him or her. The other parent usually will not want the parent who has custody to move to a distant place which makes regular visitation difficult or impossible.
The Supreme Court of Canada has recently determined that a custodial parent cannot automatically move a child anywhere without the other parent’s consent. Similarly, the Ontario Court of Appeal has also decided that a custodial parent does not have an inherent right to move a child anywhere he or she decides. Under both federal and provincial legislation, the decision to allow a child to be moved must be made in the best interests of the child.
These cases can be very expensive and time-consuming because of the research required and the time it takes to prepare and present the legal arguments. The parent seeking permission to move must often, with the help of a lawyer, prepare a detailed custody plan that includes an evaluation of facilities and resources in the new location, comparison of the costs of living, availability of health care and schools, cultural environment, and the local economy.
Many of the disputes over mobility arise in joint custody situations. If a parent has sole custody, he or she may be able to move if access and visitation rights can be worked out with the other parent, or if the court gives its permission.
The Supreme Court of Canada outlined a test to be followed when deciding whether a child can be moved when a custodial parent moves. Basically, the parent looking to oppose the move or ensure access must establish a “material change” in circumstances affecting the child. He or she will want to identify the factors that might destabilize the child’s life and will want to highlight the positive aspects of child’s life in the current location. For example, showing that the new area’s crime-rate is high, that the quality or availability of social services and schools is lower can influence the court. If the parent opposing the move is successful, then a judge can inquire into the best interests of the child as far as the move is concerned. At that point, both parents have a burden of establishing the child’s best interests.
Some factors that might be taken into consideration when deciding whether to allow a custodial parent to move a child would include whether the child could still have access to the non-custodial parent, and disruptions in the child’s lifestyle as a result of the move.
Also, some separation agreements or custody orders contain specific restrictions on the custodial parent’s right to move with a child beyond a certain distance, such as 30 kilometres beyond a specific municipality. In those cases, the parent who wishes to move with the child will likely need court approval to change the agreement or order.
In addition, if a parent is allowed to move, it may be expensive for the other parent to travel to see the child, or to have the child come to him or her. In such cases, a court may require the custodial parent to share or assume the added cost of travel to ensure access to the other parent.
For more information about children and the law, refer to the Ministry of the Attorney General website.
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