What are your rights if your spouse tells you he/she wants to move to another city with the children, or if your spouse has already moved with the children without telling you first?
Situations where one spouse wants to move to another city with the children are often referred to as "mobility" cases. These cases can be very stressful as one parent may be facing the prospect of his or her children moving to a location far away from the children's present home.
Generally, mobility cases fall into two main categories. The first category is a situation where the parents have separated but there is no Separation Agreement or Court Order that deals with custody and access. In these situations usually the children are primarily resident with one parent with the other parent having regular visits with the children. The second category is where there already exists a Separation Agreement or Court Order that deals with custody and access.
Sometimes a situation occurs where the parents have not been separated, but one parent, without the knowledge of the other, is planning a separation and then takes the children with him or her and the other parent comes home and finds that his/her spouse and the children are gone. What should that parent do?
A starting point is Ontario's Children's Law Reform Act which provides that the mother and father of a child are equally entitled to custody of the child (except where otherwise provided in the Act).
The Children's Law Reform Act further provides that where the parents of a child are living separate and apart and the child lives with one parent with the consent, implied consent or acquiescence of the other parent, then the right of the other parent to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access, is suspended until a Separation Agreement or Court Order provides otherwise.
In the situation where there has been a sudden removal of the children by one parent, then the parent who does not have the children needs to act quickly and this will likely involve the immediate institution of court proceedings and also seeking the permission of the Court to bring a motion for a temporary Order requiring the parent who has moved with the children to another city to immediately return the children to the city where they had been living and, also including, in some cases, ordering that temporary custody of the children be given to the parent from whom the children were taken. If a parent from whom the children were taken delays in bringing legal proceedings, then that may prejudice that parent's position in seeking return of the children.
A situation where the children are removed without warning by one parent may of course not be a "mobility" case in the sense that the parent who left with the children is still staying elsewhere in the same city. However, the "access parent" may still be faced with the same need to bring a court proceeding immediately and obtain a temporary order to deal with custody/access issues.
In the absence of an existing Separation Agreement or Court Order, the general effect of the Children's Law Reform Act is that on separation neither parent has the right to embark on a course of action which in effect deprives the other parent of custody of the children over the objections of the other parent.
In all cases dealing with custody and access of children, it is important to remember that each case will be decided on its own specific facts. For example, the parent who unilaterally left with the children may have done so because of fears regarding the safety of that parent and the children as a result of conduct by the other parent. In other circumstances, the parent who left with the children may have decided to not seek the Court's permission electing instead to leave with the children simply hoping that in the end the Court will approve that conduct.
The Court will ultimately decide the matter by making a decision in accordance with the primary principle which governs all custody and access cases and which states that a decision must be "in the best interests of the children".
What happens in a situation where although there is no Court Order or Separation Agreement, the children have for a number of years since separation have lived with one parent and that parent then tells the other parent that he/she is now in the middle of making arrangements to move to another city with the children? What should the other parent do? If it appears that the move is imminent, it may be important for the "access parent" to immediately start a court proceeding and obtain an Order to prevent the parent from moving with the children until the court case has been dealt with on a final basis.
In mobility cases there are invariably many reasons as to why a parent wants to move. Sometimes it is for reasons of employment. Other times it may be because the parent has a new partner who lives elsewhere or is facing an employment transfer.
If the "access parent" brings the matter to court quickly, the first decision the Court may have to make is whether to permit the move on a "temporary basis". On a practical basis, the reality is that if, for example, a parent wants to move from Windsor, Ontario to Kingston, Ontario, and if that move is permitted on a temporary basis, then this may likely make it difficult for the "access parent" to carry on with the case and to ultimately be successful at trial.
Accordingly, the motion to prevent the move on a temporary basis takes on significant importance and for the "access parent" it may become critical to succeed on that motion.
On motions, the evidence the Court relies on is affidavits which are written statements and which are signed and sworn. On motions, people do not take the witness stand and give oral evidence except in exceptional circumstances and only with the Court's permission. In essence, on a motion the Court makes a temporary Order based on written material. The temporary Order will continue until the case is dealt with on a final basis.
What happens in situations where there already exists either a Court Order or a Separation Agreement which deals with custody and access and then the parent who has primary care of the children informs the other parent that he/she intends to move to another city?
The starting point is to examine the wording of the Agreement or Order to see if it deals with the right of a parent to change a child's principal place of residence. Commonly, there are provisions in either Orders or Separation Agreements which deal with this issue. Usually the parent who moves will have to give specified advance written notice of his/her intention to move. In such a case, and where notice is given, the parties will usually have a period of time to enter into negotiations to try and resolve the mobility issue. In such circumstances it may be a good idea for the parties to engage the assistance of a mediator to assist in resolution.
In some Agreements/Orders, the only requirement of the parent who wants to move with the children will be to give the other parent specified written notice. If a resolution cannot be reached, then the other parent will need to institute court proceedings if he or she wishes to prevent the move.
In others situations, the Agreement/Order will provide that even where a parent gives notice, that parent cannot move with the children except with the consent of the other parent or a Court Order. Accordingly, if no resolution is forthcoming, then the parent who wishes to move will need to initiate a court proceeding to permit the move.
In situations where there is an Agreement/Order, there are usually detailed provisions setting out a schedule of time that the children have with each parent. Clearly, if one parent wishes to move to a location which is far away from the present location, then the time schedule that the children see each parent will clearly be disrupted and will need to be replaced by a new time schedule.
Where the time schedule is part of a Court Order or agreement (and even if the Order or Agreement is silent on whether the parent has the right to move with the children) the parent who wishes to move may be in a position where the move will result in a violation of the visitation schedule with the other parent and hence the parent who wants to move may be in a situation where that parent should be requesting the Court's permission to move and to implement a new time schedule with the other parent (if the parents are unable to agree).
In situations where there is an Agreement/Order, and one parent learns that the other parent has moved or is about to move with the children in apparent contravention of the provisions of the Agreement/Order, then it is equally important for the "access parent" to immediately initiate court proceedings and obtain appropriate temporary Orders to maintain the status quo until the case has been dealt with on a final basis.
How do Courts decide mobility cases? Is it easy for a parent to move with children to a new city?
There is an inherent risk at generalizing whether a parent will be given permission to move to a new city or new geographic location with the children. There are many facts that a Court will examine, depending on the circumstances, in arriving at a decision that is in the children's best interest. In some cases, the importance of certain factors will outweigh others. Without in any way being exhaustive, the factors which can be considered include each parent's relationship and involvement in the children's lives, the distance of the proposed move, the presence or absence of extended family members from each parent's side in the children's present location and in the children's proposed location, in some circumstances the reason for a parent's move, the effect on the children of the proposed move, in appropriate circumstances consideration of the children's reasonable wishes and preferences, consideration as to whether the move is motivated by a desire to deprive the other parent of regular contact with the children and a consideration of each parent's past conduct in relation to the children where that conduct is relevant to a person's ability to act as a parent.
There are situations clearly where a move with the children will be justified. In those circumstances, the Court can consider extra visitation with the other parent during times when the children are not in school such as summer or Christmas vacation for example.
In other situations, the Court may refuse permission to move. This can happen, for example, where the Court finds that a parent has acted unilaterally and without proper justification in making the move, or in planning a move.
In all of the circumstances discussed above, it is always in the best interests of the children if a parent who is proposing the move gives notice to the other parent so the parties can then engage in appropriate and meaningful discussions to try and resolve issues without the necessity of court litigation. This could involve mediation and also private arbitration.
Generally, where a parent engages in a unilateral course of conduct, the result frequently is that the other parent is compelled to immediately initiate court proceedings at substantial emotional and financial cost. Parents who forego the temptation to act in a unilateral manner and opt instead to engage the other parent in discussions about a potential move, will ultimately benefit not only themselves but also their children by potentially resolving the issues in dispute, or alternatively, if settlement is not possible, engaging in a dispute resolution process (including arbitration or a court proceeding) which is less contentious and acrimonious.
This blog post is provided for educational purposes only. It is not intended to be advertising, and it is not intended to be and should not be relied upon as a source of legal advice. You should not rely upon the content without first seeking the advice of legal counsel. The author of this blog post and his employer, Mckenzie Lake Lawyers LLP, expressly disclaims all liability in respect to actions taken, or not taken, based upon the content of this blog post.
