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.

Also, changes to the Divorce Act now obligate a parent with any decision-making authority or parenting time to inform the other parent of the desire to move in writing 60 days prior to the intended move.  Court forms must be prepared.  The other parent may consent or dispute the relocation.  If a court must decide the issue, the decision will be based on 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. To get help, ask a lawyer now.

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 parenting time 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 parenting time 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 parenting time with 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 parenting time with the other parent.

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Getting the advice and legal help you need

Making decisions about child custody can be very difficult and quite complex. A lawyer can help you understand your legal rights and obligations, and help you to create the best possible arrangement for you and your children. It is advisable to get the legal help that’s right for you. To get help, ask a lawyer now.

								
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