Article written by Rosemary Bocska
Co-parenting a child after a divorce takes a lot of communication and co-operation. However, while the goal is for co-parents to work together to ensure their child’s needs are met, it's not always easy.
Even for couples who have split amicably, there can be many roadblocks to co-parenting. For example, you may have different parenting styles or conflicting schedules. Other challenges may include the child’s personality and needs as well as competing responsibilities towards newly-established second relationships. For some co-parents, all of that is interlaced with simmering levels of tension over divorce issues and parenting time arrangements.
Geographical distance can also play a big part. It can be hard for co-parents to attend to their child’s needs when they live far away from each other. It usually involves a lot of driving and a lot of stressful time spent in traffic.
So, what happens if one of the co-parents wants or needs to move farther away? Does family law allow this? Can the co-parent be stopped from moving? If not, are there geographical limits on how far they can go?
These are all great questions that we will answer in this article.
(Note: This article focuses on moves by a co-parent after a divorce. This does not cover those where the parent is asking the court for permission on an interim basis before there has been a divorce trial).
What is the Law Around a Co-parent Moving with their Child?
A co-parent may propose moving with the child for a number of good reasons. Perhaps it’s for a better job that leads to a better life – one that benefits the child as well. Or, the co-parent may have partnered with someone living in a different community. They may see this as an opportunity to establish a new and healthy family environment with the child. Many other reasons can be at play, and most of them may not sit well with your co-parent.
So, what does the law say about one co-parent wanting to move – either permanently or temporarily – over the objections of the other?
For some former couples, moving may already be addressed in their court-issued divorce order and parenting plan. That’s always the first place to look when determining each co-parent’s rights and responsibilities. But if the order is silent and doesn’t cover the topic, you can look to Canada's family laws.
The Ontario Family courts can allow a co-parent to move, but they can also refuse to grant permission. It all depends on the circumstances. Please note, if the co-parent doesn't take the proper steps before moving, he or she might find themselves in contempt of court with serious repercussions to follow.
When the courts are called upon to rule on a potential move, these are called "mobility" disputes. This strictly considers whether the move is in the best interest of the child (not the co-parents). The legal tests are in the federal Divorce Act. These set out a detailed relocation framework for the court to apply. The same tests and principles are also in the Ontario Family Law Act. Lastly, the general principles have been explained in great detail by the Supreme Court of Canada in a landmark case called Gordon v. Goertz.
How will the Court make their Decision?
Even with all this guidance, it’s not a simple task. There is no single set of rules for deciding the outcome in any given case. Courts must scrutinize all the facts closely, then use their discretion to come to a result. This requires striking the balance between all the competing needs and interests.
For example, it’s easy to focus on the pros of a proposed move, but there can be many cons too. Things like the child losing his or her familiar surroundings, friends, and established extracurricular activities. The biggest concern is that if the child moves away with one parent, he or she will lose the existing level of connection and closeness to the other. That parent will lose the chance to have day-in/day-out involvement with the child. The relationship could very well suffer.
In a case from a few years ago called Reeves v. Brand, the court explained the nature of the struggle:
Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent's legitimate interest in relocating with the non-custodial parent's legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.
How Far Away is a Co-parent Allowed to Move?
Not only is there no standard answer on whether a move will even be allowed, there is no single answer on whether any distance is too great.
As before, the outcome is always determined by the best interest of the child, as revealed by the facts and evidence. A court may even allow a co-parent to move internationally – and halfway around the world – if it finds that the child’s best interests are served. These days, the Family courts’ jobs may have become slightly easier, since technology can be taken into account: Zoom and Skype sessions with the child could help bridge the physical gap between a co-parent and a child. Courts will factor this in, too.
If two people have been successfully co-parenting in the same community, it can be heart-wrenching when one of them wants to move away with the child. This is especially true if it involves permanently moving internationally, since this will naturally disrupt the parenting input, family and friend relationships, and connections that the child has in Canada.
There’s no easy solution. For some co-parents who have a good working relationship and want to avoid going to court, a separate negotiation/mediation session might be the way to reach the best outcome for all. If this might be right for you, we can help. Feel free to give our offices a call at 1-888-978-1178.
  2 S.C.R. 27.
 2018 ONCA 263 at para. 17.