Child custody issues can present a hurdle when moving to a new city 

By Tony Poland, LegalMatters Staff • Compromise can be a necessity to reaching a resolution when a parent who has parenting time with a child wants to move away, says Toronto family lawyer A. Julia P. Tremain.

“I have represented children in mobility cases and I have seen how difficult it can be on those involved,” says Tremain, a partner with Waddell Phillips Professional Corporation. “There is so much at stake for a parent who wants to move and the one who is staying behind. It changes everything when the children are no longer down the street.”

There can be a number of reasons a parent would want to relocate, she says, including a better job or a new partner.

Moving out of the city, province or country can present problems depending on the residential arrangements and parenting time, Tremain says, and requires some effort by both parents to reach a new parenting agreement that works for both sides. 

A move across town can present challenges

However, even relocating to the other side of the city or a nearby town may present challenges.

“If you move across town, it’s not likely to affect access too much. Perhaps it’s a 25-minute drive to pick up your child instead of 15,” she tells LegalMattersCanada.ca. “But Toronto is a big place and if you move from one corner to the other, you have to consider travel time. And if you moved from Scarborough to Mississauga, for example, you are likely to have a problem with parenting time on a weekday. You can’t put the children in the car for an hour each way just for a two-hour visit. You may have to adjust your parenting schedule.”

Tremain explains that a move is considered a relocation if it has a significant impact on the child’s relationship with the parent who does not have the primary caregiving responsibilities.

“As with all family law cases, the best interests of the children is the priority,” she says. “But it is difficult to easily separate that from the best interests of the parents.

“If a parent wants to move because they have a new job that’s going to pay twice as much and will allow them to buy a bigger home and be closer to family who can look after the children, that may be seen as a good reason to relocate,” Tremain adds. “But is that enough to overcome the fact that the children may not be able to see their other parent nearly as often? It depends.”

Parent must give 60 days notice before an expected move

The newly revised Divorce Act has updated provisions that require the parent who is moving to file a Notice of Relocation at least 60 days before the expected move.

“It sets out where that parent is planning to go and when. It makes it more clear for everybody,” she says. “There are notice provisions that must abide by.”

The notice asks for details about when the move will take place, the moving parent’s new address, contact information and suggestions from the parent on how the parenting and contact schedule could be changed to help support the child’s relationships with the person receiving notice. 

The only time a Notice of Relocation is not required is if a parent fears for their safety or the safety of the child says Tremain. In those cases, a person can apply to the court for relocation without telling the other parent.

According to the Department of Justice (DoJ), there are many factors to consider when discussing whether relocation is in the child’s best interests, including:

• if the move occurs, are there ways to make up some of the parenting time for the non-moving parent?
• can relocation wait until the child is older?
• can the other parent also move to the new location?
• if relocating to join a parent’s new partner, could the partner move to the child’s current location to keep the existing parenting schedule?

Tremain says a long-distance move can be difficult and an issue that is “most likely to land in court for a judge to decide because often there is no middle ground.”

‘You really are stuck if you can’t find a compromise’

“For example, if a parent wants to move to Saskatchewan and the other one is in Toronto, you can’t meet in Winnipeg as part of a parenting plan,” she says. “You really are stuck if you can’t find a compromise.

“Sometimes the parent who is relocating can offer more vacation time with the child. They can give more access during holidays. Obviously, it is not ideal because the parent who is not moving no longer has that regular contact.”

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Tremain says under the Divorce Act parents are expected to attempt to settle access issues during a relocation by using out-of-court family dispute resolution processes such as negotiation and mediation. She adds leaving the decision to a judge could result in a ruling neither parent likes.

And just because a parent believes they have a strong case for moving, such as better employment, it doesn’t necessarily mean the court will agree, Tremain says.

Child’s relationship with both parents is important

“Judges are always going to say factors such as more pay is important but so is the child’s relationship with both parents,” she says.

The DoJ states no one factor decides a case. Courts will consider the following:

• The reason for the relocation: Is it to be closer to family, is it for the child to attend a specific school?
• Impact of the relocation on the child: What are the child’s family connections to the current community and the proposed new community?
• Parenting time and parental involvement: Does the child has equally strong relationships with both parents, or does one have little involvement?
• Did the person planning the relocation follow the notice rules:  Was the move well planned and was the other parent informed and given an opportunity to respond to the proposal?
• Is there a court order, agreement or arbitral award: Is there anything stating a child is required to live in a certain place?
• Is the proposal to change the parenting arrangement reasonable: The court will consider the location of the child’s proposed home and how practical and costly it would be for the non-moving parent to travel there to spend time together. The court also looks at how easy it is for the child to return to their former residence. 
• Compliance with family law orders, agreements and arbitral awards. A judge will consider whether the person proposing the relocation has denied parenting time in the past. The court may also inquire if the parent who does not want the move has failed in the past to use their parenting time or not paid child support.

Tremain says finding a way to work it out between the parents is almost always the best plan.

“If you can’t find common ground and it goes to trial you have to wait for a court date. Family court is backlogged, especially with COVID so waiting can be challenging because a parent could have a job offer but they’re not going to get a trial until next spring. Then what?” she asks. “It’s always incumbent on the parent who wants to make the move to offer an alternative that is palatable and workable if it’s going to substantially alter the parenting plan.”

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