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In a recent case, an Ontario court considered if it should permit the children to relocate with their mother to another school district.

Father Opposed Mother Moving Children to New School District

The parties were married in September 2000 and separated in April 2018. They had three children, born in 2002, 2005 and 2009.

In March 2020, the parties were granted joint custody of the children. The father was awarded access with the two older children at their discretion. A parenting time schedule was ordered for the youngest child.

The father brought a motion for an order preventing the mother from changing the youngest two children’s schools and preventing the mother from moving all three children outside of the current school district. Alternatively, the father sought to vary the parenting time set out in the March 2020 order if the court allowed the mother to relocate with the children.

Relevant Considerations in Mobility Cases

The best interest of the child is the most important factor the court must consider in mobility cases. A Supreme Court of Canada case, Gordon v. Goertz, summarizes the law as follows:

  • The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
  • If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests 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.
  • This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
  • 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.
  • 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 interests and rights of the parents.
  • More particularly the judge should consider, inter alia
    • 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 reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
    • disruption to the child of a change in custody;
    • disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

Parenting Schedule Varied in Light of Move

The court granted the father’s motion in part. The court concluded that the mother should not be prevented from moving to Orleans with the children or changing their schools, but the father’s parenting time was increased.

In deciding this motion, the court first noted that there had been a change in circumstances and that moving to Orleans was the best available option for the mother to meet the needs of the children.

The court found that maximizing contact between the father and the two oldest children had been difficult (however, the youngest child’s situation was different, as he enjoyed the one-on-one time with the father). The court also concluded that the two oldest children’s views had been consistent and strong, and that a change of the mother’s primary residence would not be a disruption to them. As a result, the court determined that it was in the best interests of the children to allow the mother’s move to Orleans and for the youngest child to attend a school in the Orleans area. However, it was also in the youngest child’s best interest that the father’s parenting time be increased to reflect the additional commuting time.

Best Interests of the Child(ren) Remain Paramount

When considering a parent’s request for relocation, the court will make a determination based on what is in the child’s best interests.

If you have questions about your rights, it is best to speak with a lawyer. At Gelman & Associates, we understand that this is an uncertain and stressful time. We remain open to help our clients, but are taking precautions to keep safety paramount. Our goal is to always empower clients to make informed decisions about their future. In addition to our firm’s separation and divorce handbook and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with ample information and resources to help individuals understand and navigate the separation and divorce process.

In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online to arrange a consultation with one of our skilled family law lawyers.

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