What happens when one party wants to relocate to another city with their child(ren)? In a recent case, an Ontario court considered a mother’s motion to move from one area of Ontario to another.
The Background
The parties had two children, ages three and six.
In May 2018, the father was charged with several criminal offences, including possession of child pornography, accessing child pornography and unlawful possession of a scheduled substance.
In August, the mother brought an application for sole custody of the children, with no access by the father.
In December, the father was granted modest access, with supervision, on an interim basis. In January 2019, the interim access order was amended to expand supervised access.
The following month, the father was arrested and charged with several additional criminal offences. He remained in custody since his arrest.
In the meantime, the mother was granted interim custody of the children and all access between the father and the children was suspended. The mother then brought a motion for an order allowing her to relocate from London, Ontario to a town north of Oshawa, Ontario, on an interim basis.
The Relevant Legislation and Legal Principles
The court will generally resist permitting a parent to relocate prior to trial, as a full hearing is required to determine what is in a child’s best interests. However, even so, a move may be permitted if there is a strong probability that the custodial parent’s position will prevail at trial. The burden is on the parent seeking the change to prove that compelling circumstances exist to justify the move.
The guiding principles that apply to requests for relocation arise from a previous Supreme Court of Canada case. They are as follows:
- The judge must embark on a fresh inquiry into what is in the best interest of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
- The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect and the most serious consideration.
- Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
- The focus is on the best interests of the child, not the interest and rights of the parents.
- More particularly, the judge should consider:
- the existing custody arrangement and relationship between the child and the custodial parent;
- the existing access arrangement and the relationship between the child and the access parent;
- the desirability of maximizing contact between the child and both parents;
- the views of the child;
- the custodial parent’s reasons for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
- the disruption to the child of a change in custody; and
- the disruption to the child consequent on removal from family, schools and the community he/she has come to know.
The Court’s Decision
In granting the mother’s motion, the court considered a number of factors, including that the mother had been the custody parent and sole caregiver to the children since the father’s arrest in May 2018. As noted above, the mother also already had sole custody on an interim basis. In addition, the court relied on the fact that there was no existing access arrangement with the father due to his detention since February 2019.
The court concluded that there were compelling circumstances in favour of the relocation because there was a risk that the paternal grandparents would evict the mother and children from their home. The mother’s relocation to her parents’ home would provide her and the children with stable housing and social support. It was untenable for the mother to remain in London for an unknown period of time while they awaited the outcome of the father’s criminal charges.
Finally, the court found that the children had already been experiencing disruption in other important aspects of their lives as a result of the father’s detention, and that requiring the mother and children to remain in London would not change that disruption. There was therefore no genuine issue for trial regarding the mother’s custody of the children.
Lessons Learned
Courts will generally be reluctant to allow a parent to relocate on an interim basis before trial. However, an order for relocation maycan be made if compelling circumstances exist.
If you have questions about your custody and access rights, it is best to speak with a lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.
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