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One of the more difficult issues to solve when it comes to matters of child custody and access is what to do when one of the parents of a child wishes to move, with the child, to a location further away than they already are from the other parent. A recent decision from the Superior Court of Justice for Ontario provides a good example of how courts can approach motions to relocate a child, and what, if any, impact a child’s special needs may have on such a request.

The family

The parents have one child together, born on August 10, 2010. She was nine-years-old at the time of the trial and had been diagnosed with Autism since she was two-years-old. The court described her as having very special needs, requiring specialized care and services from a medical and educational perspective.

At the time of the trial, both parents lived in the Ottawa area, with the mother having sole custody of the child. An order allowed the father to have access on alternate weekends if he also had his other daughter in his care at that time. He was also allowed other time at the mother’s discretion.

The father had been ordered to complete an anger management program, and communication between the parties was to be kept to writing only, limiting direct contact between the father and the mother. This is due to the mother’s allegations that she left her relationship with the father due to emotional and physical abuse. The reason the father was only to have access to the child when his other daughter was present was because the mother was unsure of his ability to care for her, and that since their daughter was non-verbal at the time, the older child would be able to speak up if anything occurred.

The motion before the court came as a result of the mother’s wish to move with the child to Fergus, Ontario in order to provide the child with better Autism services. She also stated that her cousin, who also has an autistic child, lived in Fergus as well. Meanwhile, the father argued the mother’s desire to move was an attempt to undermine his relationship with the child, adding the mother was not capable of providing full-time care.

The law around relocation

The court explained that the Supreme Court of Canada issued a ruling in 1996 establishing the legal principals to take into consideration in a mobility case. They are:

a)         there is no legal presumption in favour of the de facto custodial parent;

b)         the focus is on the best interests of the child and not the wishes of the parent;

c)         the court should consider the existing parenting arrangement;

d)         it is desirable to maximizing contact with both parents;

e)         the views of the child;

f)         a custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children;

g)         the disruption to the child by changes in school, community and family they have come to know.

After examining these considerations, the court came to the conclusion that the mother should be permitted to move on a temporary basis, mostly on the grounds that the mother’s position had a strong possibility of prevailing at trial. The court recognized that the mother has acted as the child’s primary caregiver, and that the family and autism support in Fergus would be beneficial to the child.

Contact Gelman & Associates to learn how knowledgeable family law lawyers can protect your custody and access rights. We strive to provide you with the information and resources necessary to make informed decisions about family law matters. In addition to a comprehensive family law kit that all clients are given during their initial consultation, we also offer live webinars on divorce in Ontario and quarterly “Ask the Lawyer” live webinars. To help you maintain positive mental health during a difficult period, we also offer our clients a free consultation with a psychological professional.

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