CHILD RELOCATION

Child relocation and mobility issues are some of the most unpredictable areas of family law. Family courts might recognize the benefit of relocation for the parent with the majority of parenting time. However, the benefit of relocation must be balanced with the other parent’s parenting time and the effect the relocation would have on their ability to see their children.

When determining child relocation and mobility requests, family courts frequently rely upon case law and the Supreme Court of Canada’s decision in Gordon v. Goertz (1996) 2 SCR 27. The Supreme Court established several factors to be used when considering child relocation and mobility cases, as follows:

• The parent applying for a change in the decision marking and parenting time order must meet a threshold
  requirement. The parent must demonstrate the material change in circumstances – the request to relocate
  the child – and how it will affect the child.
• If the parent can meet the threshold requirement, the family court judge must make a new inquiry and
  determine what is in the child’s best interest. The judge must have regard to all pertinent
  circumstances relating to the ability of the parents to satisfy the child’s needs.
• The new inquiry is based on the findings of the original judge who issued the prevision decision
  making and parenting time order, along with the recent material change in circumstances.
• The new inquiry does not allow for a legal presumption that favours the decision-making parent.
  However, the decision-making parent’s views are taken into consideration.
• Each child relocation and mobility case has its own unique set of circumstances. The court is only
  interested in the child’s best interest regarding the specific circumstances of the current case.
• The interests and rights of the parents are not the focus of the family court. Instead, the emphasis
  is placed on the child and what is in their best interest.
• The judge reviewing the case needs to consider the following:
  • The existing decision making and parenting order.
  • The relationship between the decision-making parent and the child.
  • The relationship between the other parent and the child.
  • The desire by both parents for maximizing parenting time with the child.
  • The views and concerns of the child.
  • The reason the decision-making parent has for requesting the relocation when it is relevant to
    their ability to meet the child’s needs.
  • How changing the decision-making parent could cause a disruption to the child.
  • How the removal from school, family, friends, and the community where the child lives would
    cause a disruption to the child.

Please note, as of March 1, 2021, the term “custody” has been replaced with “decision-making responsibility,” and the term “access” has been replaced with the term “parenting time.”

A summary of the factors is stated by Supreme Court Justice McLachlin as follows:

“In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weight against the continuance of full contact with the child’s access parent, the extended family, and the community. The ultimate question in every case is this: What is in the best interest of the child in all circumstances, old as well as new?”

In Gordon v. Goertz, there was already an existing decision making and parenting order in effect. In circumstances where there is not a current order in effect, the family court will first establish the decision making and parenting order. Then, they will make a decision on the child relocation request using the above factors.

Whether or not the family court judge will approve the child relocation request will depend on their discretion when reviewing each of the factors and the child’s best interest.

What Are the Best Interest of Child Considerations the Court Considers?

To determine whether the child relocation request is in the best interest of the child, the family court and judge will use the following considerations:

• The reason for the child relocation request.
• The impact relocation will have on the child.
• The amount of parenting time each parent has with the child.
• Whether the parent requesting the child relocation has complied with the appropriate notice
  requirements.
• Whether there are any geographic restrictions.
• The reasonableness of the request for child relocation.
• Whether the parents have complied with their existing decision making and parenting order,
  arbitral awards, family law orders, and other agreements.

What Are the Child Relocation Notice Requirements?

The parent wishing to relocate the child must provide the other parent and those with contact orders at least a 60-day notice. The notice must include:

• The proposed relocation date.
• The new address where the child will be living.
• Any updates to contact information.
• A proposal on how parenting time and decision making will occur after the relocation.

How Markham Child Relocation and Mobility Lawyers Can Help

By scheduling a consultation at AP Lawyers, we can review the circumstances of your case. We compare your circumstances to Gordon v. Goertz, and the thousands of cases decided since then. We will advise on the weaknesses and strengths in your case, regardless of whether you are the parent requesting the child relocation or the parent opposing the child relocation.

Please feel free to contact AP Lawyers in Markham for a confidential consultation and assistance today!

Our Markham family law firm has assisted clients with child relocation and mobility requests, litigated matters in family court on complex cases, filed appeals to orders, and filed requests for modifications to existing orders.