Relocation of Children, what are your rights?

It is not uncommon for a spouse to want to move out of a jurisdiction following a separation. The reasons could include employment, moving closer to family and friends, or following a new partner. The courts are often called upon to decide whether one parent can move with a child outside the jurisdiction.  

Either parent can seek an order which would allow or prevent a parent from moving the child outside the jurisdiction. The court will examine a number of factors in arriving a decision.  They include: 

1. The relationship between the child and each parent, 
2. The desirability of maximizing both parents contact with the child, 
3. The preferences of the child, 
4. The reasons for the move only if a move is required for the parent to take care of the child's needs.
5. Disruptions to the child. (Gordon v. Goertz [1996] 2 S.C.R. 27 at para. 49)

As is the case in all decisions involving children, it is their best interest that must be of paramount concern. Where both parents offer a stable and nuturing home environment, a decision by one parent to move far away from the other parent presents the court with an uncomfortable dillema. The decision can be unpredictable, but here are some important factors to consider:

A. The Custodial Parent

The custodial parent controls the major decisions in a child's life. Presumably, the custodial parent is also the parent with whom the children spend the most time. It is in the child's best interest to have a happy, well functioning custodial parent. Considerable respect will be given to the wishes of the custodial parent to relocate, especially if a move would improve the custodial parent's emotial, psychological and/or economic well-being (see: Bjornson v. Creighton, [2002] OJ No. 4364)

In joint custody situations, if one parent is the "primary parent" and has taken over responsibility for the majority decisions, their choice of where to reside will be afforded greater respect (see Roth v. Carruthers [2000] OJ No. 5013 at para. 28-31).

If you want to prevent a move, it is important to retain and exercise custodial powers to ensure an equal footing when it comes to such major decisions. Joint custody, where both parents are involved in the major decisions and both participate equally in the lives of their children, will ensure that the views of each parent will be given equal weight.  (Dix v. Thomas, [2006] O.J. No. 3457).

In spite of the above, there is no presumption in favour of granting a custodial parent's wishes to remove a child from the jurisdiction, away from the other parent. The custodial parent has a responsibility to act in the best interest of the child. Sometimes this will allow a move, but other times it requires the custodial parent to stay in the jurisdiction (see Gordon v. Goertz ​2 S.C.R. 27 at para. 37). 

B. Maximum Contact

Having regular and frequent visits with both parents is generally considered to be in the child's best interest. This is known as the maximum contact principle found in s. 16(10) of the Divorce Act, and s. 24(2)(d) of the Children's Law Reform Act. In custody disputes, preference may be given to the parent willing to foster a good relationship between the child and the other parent (see Corriveau v. Blair, 2005 ONCJ 470).

A decision on custody will be made before a judge makes a decision on where the child will live and with whom.  In deciding a custody issue, a court can rely on a parent's plans to relocate outside the jurisdiction (see Hibbert v. Escano [2010] OJ No. 944 at para. 78).

The maximum contact principle is important in mobility cases. A move often significantly reduces access to a parent whom the child is used to seeing regularly. If the move is not necessary for a parent to meet the needs of a child, the maximum contact principle will likely prevail over the wishes of the parent to move (see Berry v. Berry, [2011] O.J. No. 5006).

The court is more likely to dismiss an application to relocate where the evidence indicates that the application is motivated, at least in part, by a desire to frustrate the other parent's access (see Wolf v. Wales, [2001] OJ No. 120 aff [2001] O.J. No. 4908). 

Nevertheless, the principle of maximum contact is subordinate to over-all consideration of the best interests of the child (see Nunweiler v. Nunweiler, [2000] BCCA 300 at para. 28). 

C. Stability and the Status Quo 

In addition to giving weight to the wishes of the custodial parent, and the desirability of maximizing contact with both parents, the need for continuity and stability in the life of the child is a very important consideration. 

A move that would take the child away from their friends, school, neighborhood and activities may result in a negative disruption and be contrary to the child's best interest (see Elliott v. Turcotte, [2009] ONCA 240 at para. 18). 

Where the move would cause a disruption to a stable environment, this factor is of "prime importance." (see Young v. Young, [2003] OJ No. 67 at para. 28). Factors include a disruption to family, schools, and the community the child has come to know.  

Conclusion

There are a number of competing interests and factors to weigh when determining whether a move is in the child's best interest. It is often a difficult decision for a judge to make, especially where both parents are committed to live in separate jurisdictions. It is an area where it is hard to expect parents to agree.  

​





​