How to Move with Your Child or Stop a Move of Your Child After a Divorce or Separation: Top 5 Factors Favouring a Move and Top 5 Arguments to Oppose a Move

When courts were more focussed on parental “rights” rather than “best interests of the child,” it seemed they were more reluctant to let one parent move with a child such a distance away that regular access of the other parent would be logistically challenging. But more recently, it appears courts have had a reality check realizing that Canadians are more mobile than ever for work, study and family reasons, and that trapping both parents in one spot - often a spot they aren’t originally even from - until all their children are grown is simply not in the best interests of those children. 

Not surprisingly, the parent who doesn’t want to move often fights such moves by the other parent. Sometimes successfully. There is a significant rate of family court contested hearings on mobility issues because of the dramatic way that each parent will be impacted by a move of one of them away from the geographic spot of their split. 

You can generally break moves with children down into short, medium and long distance. The short moves - under 100 km - are really no brainers. Looking at the caselaw, courts will almost always agree that one parent can move that distance. It will lengthen the duration of access transitions, but not overly frustrate weekly transitions. So fighting a move like that might mostly get you hit with a large costs award.

Medium and longer distance moves are more controversial, but their court results will be factually specific. Courts have often authorized what I would called medium distance moves of 500 km or so, seeming to think that regular access is still possible even though it will be a bit of a hike. Moves across the continent or to a different continent become more challenging still, but courts have even regularly authorized those when deemed to be in children’s best interests. 

THE SUPREME COURT OF CANADA'S TAKE ON PARENTAL MOVES WITH CHILDREN

Over 20 years ago, the Supreme Court of Canada in the seminal case of Gordon v. Goertz, [1996] 2 S.C.R. 27 found: "While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.”

As courts are now drifting away from inflexible concepts like “custody” versus “access,” whether a move should be authorized in a truly shared parenting arrangement may be a more challenging question to resolve. But the same principles will apply regardless of the custodial arrangements: it’s all about the best interests of the children. 

IT'S MOSTLY ABOUT THE FACTS, NOT THE LAW, SO PRESENT COMPELLING HARD EVIDENCE OF BEST INTERESTS

Like a lot of family law, whether a move is or is not approved by a court has a lot more to do with the weight of the presented evidence, than with some magical legal authorities. Best interests of the child start with maximum contact with both parents. So if that contact is going to be lessened with one parent - perhaps significantly lessened - there needs to be a significant counter weight of best evidence to show why there will be an overall net gain to best interests with a move that ultimately involves reduced frequency of contact with one parent. Uncertainty on the court's part as to whether or not a move is a good thing will likely result in preserving the status quo, and no move being approved. 

Although most "misconduct" is not supposed to count anymore in family law, that doesn't apply to breaches or agreements or court orders, so if one parent jumps the gun and moves anyway without consent or a court order, it might become a lot more difficult to get court approval after the fact.

HOW TO BEST PROMOTE A MOVE WITH YOUR CHILDREN

1. Demonstrate there is a tangible change in circumstances since the agreement or order. This is an official precondition to a court considering a motion to change custody, unless you've only got an informal agreement which doesn't really count for court purposes. 

2. Demonstrate that the children will be economically much better off after the move, such as by better parental job prospects or reduced housing costs. Don’t be vague or speculative. Actually get a better job first that is conditional on being able to take the children, as difficult as such a conditional offer might be. Present written evidence of the job. Present written evidence of the type and cost of accommodation. Produce economic statistics from the region to which the move is proposed.

3. Demonstrate that the children will be educationally, physically and mentally better off after the move. Show proof of better schools, perhaps with specialized education programs. Show proof of specialized medical treatment programs. Especially show proof of extended family support in new location, like grandparents, uncles, aunts, cousins. Don’t be vague. Include letters from real people identifying the children in question, and their admissibility to these programs. 

4. Demonstrate that the other parent won't be economically disadvantaged by the move by offering to pay all costs of travel of either children or non-custodial parent for access visits.

5. Demonstrate that the principle of maximum parental contact will still be honoured to the greatest degree possible after the move through describing in detail electronic means and timing of remote access with children, plus generous in-person access which might include all summer holidays, and even every Christmas and March break forever. The courts are receptive to proposals that the parent staying have longer terms of uninterrupted access, even if access won’t be as frequent as prior to the move. Do the math, counting hours and days of access under the current regime, and contrasting that to the numbers under the proposed regime. Produce detailed calendars.  

HOW TO BEST OPPOSE A MOVE OF YOUR CHILDREN

1. Assert there is no real change of circumstances since an agreement or order. The court will sometimes toss an entire motion to move on this basis. While it can be difficult to win on this argument alone, there is not really any downside to attempting to make it. 

2. Demonstrate how well the children are currently doing in their present environment. Be specific. Cite all the things they will be torn away from. Produce documentary proof. Produce contrary proof that those things won't be available in the new proposed home location. Demonstrate the speculativeness of the advantages cited in favour of the move: perhaps no job or housing has been secured yet, and perhaps an overly optimistic economic, educational and lifestyle view of the new location is being presented to the court by the parent seeking the move. 

3. Demonstrate the relative equality between the parents of current access/custody arrangements, and how lopsided that will become if the children move away with one parent. Courts will be more likely to approve a move for one parent already spending much more time with the children than the other parent. 

4. Demonstrate the lack of real ties of the children and either parent to the new proposed location, as compared to the current location. 

5. Demonstrate the great logistical difficulties presented by regular access between the old and new location, including the significant financial cost, tiring nature of travel for young children, time zone differences, that winter driving between locations is hazardous or that driving isn’t even possible because of distance. 

Even though parties might be able to represent themselves on minor changes to access or custody arrangements, like times or locations of pickup or drop off, or what school should be attended, the catastrophic consequences for one parent of winning or losing a geographic move motion means that you should always be considering retaining legal counsel to help you with it.

Such motions don't need to consume untold resources so long as you push them to a hearing date as quickly as possible, without too many preliminary case conference or settlement conference court appearances. Devoting lots of personal efforts to compiling and organizing a strong factual evidentiary record favouring or opposing a move will save you lots of money on a lawyer as a parent, as that will let the lawyer focus on the law part rather than the facts part of the court equation. 

Gordon S. Campbell is a Family Law Barrister practicing throughout Ontario. Lean more at www.nofearfamilylaw.com.