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 upon the separation and/or divorce of parties, particularly when one party makes the decision to move with the children in tow.
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 refers not only to the parent that the child resides with, but the community where they reside. If you are questioning where your child’s habitual residence is beyond the parent that they primarily reside with, you can ask yourself certain questions to determine this, such as where the child attends school, extra-curriculars, attends community programming, have relationships with friends, family, and other community members, etc.
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. There is document called a “Notice of Intention to Relocate” that can be completed and provided 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).
Should the suggested move not be in agreement with the other party, as they do not believe it to be in the best interests of the child, they would advise as to the reasons for such in their responding Objection to the Notice for Relocation.
Should the parents find themselves in a stalemate with respect to these materials 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 no one known your own family better than you and your co-parent, and putting a significant decision of this nature into the hands of a Judge, who is a stranger to you and your child, is not always the best option. However, if there is an impasse, it is often necessary.
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. 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 kids, 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” and why the move is requested/necessary. Ultimately, on a Motion, the Judge will make a decision and issue 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.