Mobility matters: Understanding relocating with children when you’re separated or divorced
By Timothy Matthews | June 22, 2020 (Updated May 2, 2022)
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” or “relocation” cases. Amendments to the Divorce Act and Children’s Law Reform Act came into force in 2021 that now require that a minimum of 60 days’ notice be provided by the party seeking to relocate with the children, and that they serve a notice of relocation on the opposing party in a prescribed form (i.e., a specific document required by this new legislation). If the other party objects to the relocation, they then have 30 days to either respond with their objection (also in a prescribed form), or by making an application to the Court to oppose the relocation.
Due to these new provisions, and the strict timelines that now apply, it is important that you obtain legal advice immediately if you are seeking to relocate with the children, or if the other party has provided you with notice of their request to relocate with the children.
Ultimately, there are two options. The first is that you and the other party agree on the proposed relocation. If this occurs, a written agreement should be completed to confirm the details of the relocation (location, date, etc.) and any related issues (such as parenting time and how travel that may now be associated with parenting time will be shared, as well child support and any other new details in your arrangement with the other party). The second option – if the parties cannot agree – is that 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 critical 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. 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 situations 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 2020, Lauren Conti obtained an order at a trial preventing the opposing party from relocating from Thunder Bay to Manitoba with the child.
- In 2018, Lauren Conti obtained an order at a temporary motion permitting her client to relocate with her child from Thunder Bay to Timmins.
- 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 for his client, the father, preventing the opposing party from removing his children from the jurisdiction of their habitual residence in Red Lake.
- In 2021, Lauren Cooper obtained an order at a motion ordering the opposing party to return her client’s child to Thunder Bay from British Columbia.
- 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.