Relocation can be a dramatic disruption to many families’ lives. It is very common for individuals to pursue new jobs, relationships, or social communities, and it isn’t always easy or exciting to reconcile these imperatives with those of your ex, whom you may share children with.
If you are considering a move, and want to take your child with you, you are required to obtain the other guardian’s consent or, failing that, apply to court for permission. Judges do not look kindly upon parents who take matters into their own hands and move without giving the other parent an opportunity to object. There is no inherent entitlement for anyone to take a child away from their other guardian, regardless of how great that new job may be, or how excited they are about their new relationship. Ultimately, the only consideration that really matters is what is best for your child.
Conversely, if you become aware that your ex is planning a relocation, and you don’t agree that your children should go with them, you need to react swiftly to prevent the move. There is a significant risk associated with delaying a court application opposing the other parent’s move. In many cases, parents simply move without permission. If this happens, a judge will likely be sympathetic to the unfairness of your situation. However, they are bound to consider only what is in the child’s best interests, and those interests will have already been impacted by the move. The longer you wait to bring an application for the return of the child, the greater the likelihood that the child will adapt to their new environment and that any return to where you are may be viewed as a disruption to the emerging status quo of their life in the new location.
According to the law, parents planning a relocation with their child must give at least 60 days’ written notice to the other parent. The non-relocating parent then has 30 days to object. If there is no objection, the relocating parent can move without further delay. If there is an objection, the two parents must appear before a judge to make submissions on where it is best for the child to live. In practice, many parents are not aware of the formal requirements of relocation and, in many cases, end up in court after the move has already happened.
Once in court, the parents or their lawyers will likely conduct an analysis of the best interests test under section 37 of the Family Law Act, or section 16 of the Divorce Act, depending on which statute their proceeding is filed under. The tests are broadly similar, however, the Divorce Act has a more comprehensive framework for determining whether the relocation is in the child’s best interests. For example, in addition to the best interests factors listed at section 16(3) of the Divorce Act, the court must also consider the additional factors listed at 16.92(1) of the Divorce Act. These additional factors include the reasons for the relocation, the impact of the relocation on the child, whether the relocating parent complied with the applicable notice requirements for a move, etc.
As the non-moving parent, it is important to be as realistic as possible, and focus on what is truly best for your child. As difficult as it may be, if the odds are stacked against you with respect to whether a court will grant a relocation, it may be wiser and more beneficial for your family to avoid spending exorbitant fees on a legal battle, and negotiate a reasonable parenting arrangement which will maximize your ability to have quality time with your children.
For example, if you are not the primary parent of the children, meaning the children are in your care less than 40% of the time, you are unlikely to be successful in opposing a relocation. Although the court is not permitted to consider whether a parent will move without their child, they will most likely consider the significance of the primary parent’s role in the child’s life and avoid the risk that the child will lose the presence of that parent in their lives. Moreover, if your children are close with the relocating parent’s extended family, who would be accessible to them in their new location, this will likely be compelling to the court in deciding to authorize the relocation.
Another important factor to consider is whether the relocating parent has viable work opportunities where they currently are. If they are unable to foster a meaningful career without the move, and can demonstrate that they are able to do so elsewhere, the judge will likely recognize the importance to the child of their parent being able to pursue a fulfilling and financially rewarding career. The overall wellbeing of the moving parent is increasingly being taken into account by courts in deciding whether to authorize a relocation, as we have observed in recent court decisions like Barendregt v. Grebliunas, 2022 SCC 22. Whether it is a new job, or a secure social community, judges are recognizing that having happy and fulfilled parents brings great value to children, including the benefit of healthier and more stable parenting.
Although there are a number of legal formalities involved in relocation, this area of the law is driven entirely by the best interests of the children involved. It is important to be as pragmatic as possible, given the stakes, as your children are likely to benefit more from you working with your ex to come up with the healthiest parenting arrangement in the circumstances, rather than spending hard earned funds and precious emotional resources on fighting a painful and draining court battle.