A parent moving with a child is perhaps the most unpredictable area of family law.
While courts recognize the benefit of a custodial parent moving, these benefits must be balanced against the effect it has on the children spending time with the other parent.
The leading case on relocation remains the Supreme Court of Canada decision in Gordon v. Goertz (1996) 2 SCR 27. The court set out the following factors to be considered in relocation cases:
- 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in circumstances affecting the child.
- 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
- 3. This inquiry is based on the findings of a judge who made the previous order and evidence of the new circumstances.
- 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
- 5. Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
- 6. The focus is on the best interests of the child, not the interests and rights of the parents.
- 7. More particularly the judge should consider inter alia:
- a) the existing custody arrangements and relationship between the child and the custodial parent;
- b) the existing access arrangement and the relationship between the child and the access parent;
- c) the desirability of maximizing contact between the child and both parents;
- d) the views of the child;
- e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
- f) disruption to the child of a change in custody; and
- g) disruption to the child consequent on removal from family, schools and the community he or she has come to know.
Justice McLachlin summarized the factors by stating:
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 weighed against the continuance of full contact with the child’s access parent, the extendedfamily, and the community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
Gordon v. Goertz dealt with a case where there was an existing custody and access order. If there is no existing order regarding custody, the court will decide this first, before deciding the mobility issue based on the factors above.
Whether or not a move will be permitted depends on the judge’s discretion based on the facts of each case.
At a consultation with AP Lawyers, we will review the facts of your case and based on the thousands of cases decided since Gordon v. Geortz, we can advise you on the strengths and weaknesses of your case, whether you are the party who wants to move, or the party opposing the move.
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