Separating and divorcing parents should ideally discuss amicably how they will parent their children in future, including who the children will live with. However, if one parent wishes to relocate with one or more child of family and the other parent is resisting – a dispute can become unavoidable. Even after access arrangements have been formalised, circumstances can change and a parent may wish to relocate with a child.
Cross border issues
In today’s modern culture of extended families, and work commitments crossing geographical boundaries – the scope for relocating children to other countries is greater than ever before. The family lawyers at Rogerson Law Group have years of experience advising family clients on cross border issues involving children, as well as assets held abroad. This is why so many clients instruct us when a cross border element arises.
If you are in a dispute with your ex about relocating with a child or children, the experienced family and child relocation lawyers at Rogerson Law Group are available to provide urgent advice.
What does the law say?
In Ontario, a parent is legally permitted to move with their child if doing so will not affect the other parent’s access to the child. Otherwise, the other parent’s agreement to relocate will be needed – or else a court order.
If the matter goes to court, the judge will have to be convinced that relocating is in the child’s best interests – an issue both parents must therefore consider at the beginning. If a parent wishes to relocate with a child – but this is clearly not in the child’s best interests – that parent should drop those plans.
A ruling in the Supreme Court of Canada laid down very clear guidelines for child relocation cases1. In this case, a parent wanted an access plan to be varied so that he could move abroad with the child. The Court decided that the parent applying for a change in the custody or access order must meet the threshold test, which requires a material change in the circumstances affecting the child. For that threshold to be met, the judge must be satisfied of three things (where there is an existing child custody or access order/arrangement):
- 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
Once the judge is satisfied of all of the above, both parents must then demonstrate what is in the child’s best interests – ie, in the existing location or that proposed by the parent wishing to relocate. The judge will consider a number of factors before reaching a decision, including any existing custody and access arrangements; the relationship between the child and both parents; the desirability of maximizing contact between the child and both parents; the wishes of the child; and the potential impact on schooling, family relationships.
The bottom line is that the child’s best interests are paramount – the views of the parents are not determinative. However, each case will be decided on their factual basis. If court action does become necessary, we work hard to protect your child’s interests and ensure they are uppermost in any negotiations, and representations made to the court.
The family and child support lawyer team is led by Andrew Rogerson, the firm’s founder. He is assisted by Joseph Gyverson, Matthew A. Giesinger and James Bennett , who complement our domestic and international family law practice.
Contact Rogerson Law Group at (416) 504-2259 – Our experienced Family Lawyers can offer you sound & strategic advise for domestic (Greater Toronto Area) & international family disputes or litigation involving multi-jurisdictional matter.
1 Gordon v. Goertz (1996) Supreme Court of Canada