Mobility matters: Understanding relocating with children when you’re separated or divorced
By Timothy Matthews | June 22, 2020
Are you thinking about moving for a new job, a fresh start, or to be closer to your friends and family? If you are separated or divorced, and want to make the move with your children, it’s crucial to get advice from your family lawyer first.
Moving can be complicated
These situations are called “mobility cases” or “relocation cases.” If you are separated and have a final court order or separation agreement, that agreement may address the circumstances under which you may be permitted to move with your children. Often, this requires that the party seeking to move provides the other party with advance written notice of the move (such as 30, 60 or 90 days) and then obtains the other party’s consent (often in writing) or a court order.
If there is no existing agreement or court order, you and the other party will either have to agree on the proposed relocation or a judge will have to decide whether to allow the proposed move. This is done at a motion or a trial where the judge hears the evidence and arguments of both parties and then makes a decision. Depending on the age of the children, as well as other factors, the children’s views and preferences can sometimes be made known to the court through a Children’s Lawyer or social worker.
What if you want to move with the children before your case comes to trial? It’s possible to have a temporary relocation, but the test for moving on a temporary basis is really quite stringent—your lawyer has to show the judge there is an exceptionally good chance you’re going to be successful at trial. This is, in part, to prevent the children making repeated moves.
If you have learned that the other party has already relocated with the children without your consent, it is important that you speak to a family lawyer as soon as possible to discuss your options, as delaying can make things more difficult, and can harm your ability to contest the relocation.
What does “best interests” mean?
The test applied to a proposed relocation is whether the move is in the “best interests” of the children. The interests of the moving parent are only relevant in so far as they affect the children. However, within the ultimate test of the best interests of the children, there are numerous factors that a judge will consider, including the quality of the children’s relationship with the parent who is not relocating, how often that parent would be able to see the children if they were to move, and whether the proposed move would benefit the children (for example through better work or school opportunities for the moving parent or increased support from family and friends). In other words, there are a number of cases in which the best interests of the children and the parent are closely intertwined.
Thorough knowledge is key
Analysis of the law and facts is very important in mobility cases. Your lawyer’s ability to apply the law to the facts of your specific case can have a significant impact on the outcome.
Mobility cases can be particularly challenging in Northwestern Ontario, because the distance between communities can be significant. Lawyers at Henderson Family Law have successfully represented clients seeking to relocate or seeking to prevent a relocation through negotiations, motions, and trials:
- In 2018, Lauren Conti obtained an order at a motion permitting her client to relocate with her child from Thunder Bay to Timmins on a temporary basis.
- In 2017, after a four-day trial, Timothy Matthews obtained an order at trial permitting his client to relocate with her child from Geraldton to Thunder Bay.
- In 2010, Timothy Henderson obtained an order at a motion permitting his client to relocate from Emo to Thunder Bay with her children.
- In 2010, Timothy Henderson obtained an order at a motion preventing the opposing party from removing the children from the jurisdiction of their habitual residence in Red Lake to Ear Falls.
- In 2018, after a five-day trial, Rebecka Angell obtained an order at trial permitting her client to relocate with her child from Fort Frances to Thunder Bay.
To learn more about relocation, please contact us to discuss your specific situation.
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.