One of the most significant issues families can face after separation/divorce is relocation. This issue is complex and difficult to resolve and often requires adjustments to parenting time. Although you may be under the impression that once your separation becomes final, you will be able to move where you wish, this is not the case. The Courts have determined that you can move with your child if the move will not affect your spouse’s access time with the child. Should your relocation affect your spouse’s access time, you will need to obtain your spouse’s consent to move or you will need to obtain an Order from the Court that allows you to vary the current custody/access schedule and your relocation. Furthermore, the Courts have created a Test to determine whether they should change the current custody or access schedule:
- There must be a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child;
- The change must materially (significantly) affect the child, and;
- The change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
If you successfully prove the above elements, you must then prove to the Court that your relocation is in the best interests of the child. The Courts consider the following factors in determining an Order for relocation:
- 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 (this factor increases in weight with a child’s age). The child’s age may be a significant factor for not permitting the move where the child is of such a young age that he/she has no capacity for wishes.
- The custodial parent’s reason for moving is a factor ONLY in the exceptional case where it is relevant to the parent’s ability to meet the child’s needs;
- The disruption to the child of a change in custody;
- The disruption to the child consequent on removal from family, schools, and community;
- The custodial parent’s views, but views are not determinative.
Considering the above, the Courts do not have a strict guideline to follow, rather to determine a court order for relocation is discretionary to each Judge. The key factor to ensure that is demonstrated to the Courts when requesting an Order for relocation is that the relocation is in the best interests of the child, not in the best interests of the parent.
If you would like to speak with one of our lawyers regarding further issues related to this topic please contact us at (416) 840-1475 or schedule your free initial consultation here.