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Article written by Ron Shulman
If you are a separated or divorced parent, you recognize the necessity for compromise. From the vantage-point of the parent with full or shared custody, this usually includes accommodating custody/access times, and negotiating around the various choices that must be made in the day-to-day care of the children. It also includes tolerating the different choices, lifestyles, and living arrangements that the other parent may have, now that you are no longer living together.
But what about moving away with the children? If you are the parent with custody, is this something you are entitled to do, even if it affects the other parent’s rights?
In Ontario law, this question falls under the heading of what are called “mobility” issues, and it comes up often in court cases. This is because court orders are usually premised on the assumption that your child’s principal residence is near the other parent (i.e. the one who is given access); if you are a custodial parent who wants to change that by moving elsewhere (for example to take a new job or pursue another relationship), then this amounts to a “material change” which in turns triggers the court’s involvement to determine whether your wishes should prevail.
The leading Canadian case that sets out the law is aSupreme Court of Canada decision called Gordon v. Goertz,[1996] 2 S.C.R. 27. That case established some key points for a court to consider when asked to determine whether one parent should be allowed to move the child away from where the other parent lives.
The main points are these:
- Mobility issues are to be determined in keeping with the best interests of your child.
- There is no legal presumption that, as the parent with custody, your views are going govern. However, they are entitled to “great respect”.
- There are certain factors that should be considered by a court in determining those best interests:
- the existing custody arrangement and relationship between you (as custodial parent) and the child;
- the existing access arrangement and the relationship between the child and the other parents who enjoys access;
- the desirability of maximizing contact between the child and both parents;
- the views of the child;
- your reason for moving (but 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 if a change in custody is ordered;
- the disruption to the child that arises from his or her removal from family, schools, and the community he or she has come to know.
But despite this list, it’s important to know that each case must be determined according to its unique facts.
Shulman Law Firm is a Toronto-area firm of experienced Family Lawyers who can provide practical advice and effective representation relating to the steps and processes involved in separating and getting divorced in Ontario. Contact us to set up a consultation.