CHILD RELOCATION

A parent moving with a child is one of the most unpredictable areas of family law.

While courts may recognize the benefit of moving to a parent with the majority of parenting time, these benefits must be balanced against the effect the move would have on the parenting time allocated 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 (note that since March 1, 2021, there has been a change in terminology and decision-making responsibility has replaced “custody” and parenting time has replaced “access”:

• 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 extended family, 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 relocation 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.

Relocation – best interest of the child considerations

In deciding whether to authorize a relocation of a child, the court shall, in order to determine what is in the best interests of the child, take into consideration the following factors:

• Reason for the relocation
• Impact of the move on the child
• Amount of time and involvement of each person who has parenting time
• Whether person proposing the move has complied with notice requirements
• Geographic restrictions
• Reasonableness of proposal
• Whether those with parenting orders have complied with family law orders, arbitral awards and agreements

Notice Requirements

Before relocating, the person requesting to move must give 60 days notice to other persons with parenting or contact orders. The notice must include the moving date, new address and contact information, a proposal as to how parenting time, decision-making responsibility and contact will occur after the move.

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.