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Many parents do not realize that the community that your child(ren) are born into and are raised to be a part of, whether geographical or social, can play a significant role in parenting issues following the separation and/or divorce of parties, particularly when one party makes the decision to move with the children in tow. This can be an issue even when the parties have already negotiated a Separation Agreement or have a Final Order.

Under section 22(2) of the Children’s Law Reform Act, a child’s “habitual residence” is the place where they have most recently resided either with both parents, or if the parents are living separate and apart, with one parent under an agreement or Order, or with that parent on a permanent basis for a significant period of time. This means not only that the Court considers the home that the child lives in, but the community that they are a part of, the family members and friends that they interact with on a regular basis, extra-curricular activities, and all of the other facets that make up the child’s life. For parties who have already negotiated a Separation Agreement or have a Final Order from the family Court, this is often referred to as the parent who has “primary care” of the child, even if the parents have a shared parenting schedule.

If it is not clear what larger community is the child’s habitual residence for the sake of the argument for moving, or if the proposed relocation would constitute a change of residence, consider whether the proposed move would affect the child’s ability to have parenting time with the other parent, attend their regular school or daycare, have contact with friends and family, and other such considerations. If the answer to any or some of those questions is “yes”, then the relocation being proposed would constitute a change to the child’s habitual residence and would certainly warrant taking next steps.

If a parent is separated and is planning to move with the child(ren) coming with them, they must consider section 39.1 of the Children’s Law Reform Act, as below;

39.1 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence, or in the child’s residence, shall notify any other person who has decision-making responsibility, parenting time, or contact under a contact order with respect to the child of the intention.

39.1 (2) The notice shall be in writing and shall set out,

  • The date on which the change is expected to occur; and
  • The address of the new residence and contact information of the person or child, as the case may be.

As such, if a parent is planning a move, they must notify the other parent of their intention to do so. Some parties who have already separated may have a clause(s) in their current Separation Agreement or Final Order outlining the responsibilities of the parties upon relocating. Parents should always review and refer to any agreements or Orders before making any plans or taking steps to relocate with or without the child.

If the Agreement or Order is silent on the issue of relocation, there is document called a “Notice of Intention to Relocate” that the moving party should complete and provide to the other parent, who will then have 30 days to complete and provide to the other party either their consent to the move in question or a responding form, being an “Objection to Notice of Intention to Relocate”. The parent who is attempting to relocate should include in their Notice not only the information outlined in the Children’s Law Reform Act section above but information about the plan that they have for the child upon moving. This can include why they believe this is in the best interests of the child, reasons for moving, resources and community supports that would be available, options and arrangements that have been made for services such as enrolling the child(ren) in school, finding them a doctor, dentist, etc. This information can assist the other parent in understanding the plan for the child as effectively as possible and, hopefully, make it easier for them to consent to the change if it is in the best interests of the child(ren).

If the other parent responds to this Notice and indicates that they are agreeable to the proposed move, you are able to move forward with your plan. However, it would be advisable to have a lawyer prepare and agreement confirming that the moving party has the ability to move and confirming and changes to the parenting arrangements, or alternatively, if the parties have a Final Order that requires changing as a result of the move, have the lawyer prepare a Consent Motion to Change to notify the Family Court of these changes and that a new Final Order is required, on the consent of both parties. Failure to take these steps so as to confirm the changes to the child’s circumstances could result in issues down the road with the other parent, or difficulty in arranging for services for the child after moving.

Should the other parent not agree to the move, or think that it is not in the best interests of the child, they will have the opportunity to confirm their position in writing, or by serving the moving parent with an Objection to the Notice for Relocation.

Should the parents find themselves in a stalemate with respect to moving and be unable to consent to a plan for the child(ren) on their own, their only choice moving forward to follow the proper legal protocols is to bring a Motion to the Family Court and request a decision from a Judge. Should a party make the decision to do so, both parties will have the opportunity to submit materials and attend a Motion date where they will reiterate and explain their perspectives on the issue so that a Judge will make a decision. It is imperative to remember through this process that while a Judge will have the opportunity to review your Motion materials, they are not intimately familiar with your family dynamic in making this significant decision. As such, if the parties are able to negotiate an agreement, it is often preferable to do so rather than putting the future of your family and children in the hands of a Judge. However, if that is not a realistic possibility, a Motion is often required.

The onus is generally on the moving party to prove to a Judge that the child(ren) will not only have an equal, but improved quality of life as a result of the proposed move, or that it is necessary. It is important to have a plan for the child to continue to have contact with the other parent if that was the case before now, as well as family and friends. In bringing a Motion, the parties should consider the current arrangements for the child pursuant to the Separation Agreement, Parenting Agreement, or Final Order, and attempt to make accommodations to maintain the intention of these Agreements/Orders as possible.

The ultimate consideration in these kinds of proceedings is generally the best interests of the child; the Judge will likely make a decision based on what is best for the child(ren), not based on the rights of the parents. In making this decision, the Judge will consider what steps have been taken by the parties to make arrangements for the child(ren), their relationship to their current community and “habitual residence”, why the move is requested/necessary, among other factors. Ultimately, on a Motion, the Judge is most likely to make a decision and make an Order based on that decision, which the parties will ultimately be required to follow, whether they agree with the decision or not.

There are circumstances where parents are not aware of the requirements laid out herein and make the decision to move with the child(ren) without providing the requisite notice or getting consent from the other party or an Order from the Family Law Courts. In these situations, it is very common that the non-moving parent will bring an Urgent Motion to the Family Court and request an Order that the children be returned to their habitual residence immediately. Though there is no guarantee of the Order that would be made, in those circumstances unless there is compelling evidence from the moving party as to why they did so without following the proper protocols, it is very likely that the other parent would be successful and the moving parent risks losing care of their child(ren) to a degree or altogether. As such, it is imperative that these steps be followed, though they can be long and tedious, to avoid a negative result.

It is important to note that parents should not confuse decision-making responsibility with the decision to relocate the children. Often in parenting agreements, Separation Agreements, or Orders, the parties will include a clause that outlines which of the parents, if not both jointly, have the decision-making responsibility for the child(ren). Parents should note that this right to make decisions for the children does not extend to relocation of the children and that despite having this responsibility, parents will still be required to follow the proper process for relocation as outlined above to ensure that they meet their legal obligation and do not have a Motion brought against them or an Order made against them.

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