Can I move with my children after divorce?
You can likely move with your children after a divorce if you are the sole guardian of the children, have sole custody, or if there is a written agreement or court order permitting you to move without requiring the other parent’s consent. In other circumstances, you will likely need a court order in order to bring your children with you. This article discusses what's involved.
Avoiding a relocation fight
Relocation disputes can lead to costly, extended court battles. Unsurprisingly, the relocation issue has generated a considerable amount of case law across Canada. These disputes most typically arise when one parent seeks to move, with their children, a significant distance away from the other parent. The parent who is left behind may be concerned about their ability to be involved in the children's life from a distance.
Sometimes those concerns can be fully addressed, and sometimes not. It is nearly always best to discuss your plans to move with the other guardian of the child before taking steps to finalize relocation. Providing notice may help avoid an urgent court application by the other parent to prevent the move. Even if you have the legal right to move without a further court order, it's usually best to provide plenty of notice and make efforts to resolve any concerns collaboratively to avoid disputes.
Needless to say, communication and negotiation is even more important if you are applying for a court order to allow the move. In worst-case scenarios, relocation disputes can drag on for years.
Will my relocation application succeed?
Relocation applications can be refused by Canadian Courts in situations where there is a joint or shared custody arrangement. Since relocation often involves a change in the custody and access dynamic of the parents, the non-moving parent has the legal right to apply for a change in custody to prevent the child from being moved with the departing parent.
The leading case on child relocation is Gordon v Goertz,  2 SCR 27. In that case, the Supreme Court of Canada set out a number of factors that the moving parent must demonstrate to obtain approval for the relocation. These can be summarized as follows. An out-of-province relocation has been permitted where:
- the custodial parent’s reasons for relocation are relevant to their ability to meet the child’s needs, and
- it was either possible to facilitate continued access to the other parent, or the other parent did not have a positive relationship with the child.
Courts are called upon to make an educated prediction as to the best interests of the children, based on evidence of their pre-relocation lifestyle and evidence of what the parents believe will transpire after relocation if it is permitted (SSL v JWW, 2010 BCCA 55).
In short, relocation applications will succeed where the Court is persuaded it is in the best interests of the children. Proving that can be a complex challenge.
The best interest of the child
Although the Courts cannot prevent you from moving, the relocation of children can be halted as custodial rights do not inherently include the right to change a child’s place of residence. Ultimately, the assessment of the child’s best interest is the focus, rather than the rights and interests of the parents.
If the relocation prevents the child from having a relationship with one parent, it may be refused. The Courts of Appeal in both Alberta and British Columbia agree that more weight must be given to the parent-child relationships over other competing interests in relocation decisions. This is because they are primarily taking into account the impact of the change on the child, as opposed to the impact of the change on the parents. The best interests of the child must prevail in relocation decisions (RJF v CMF, 2014 ABCA 165; Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230).
Judges generally act to minimize the potential disruptions to the stability of the child’s life after separation. This is why the Court is likely to balance any disruption to the child’s life caused by being removed from their home, school and community, against any change to the custody arrangement at the time of the move. Your ability to relocate with your child will depend on whether the move can be classified as a material change in circumstances that affects the child’s best interests. It is of vital importance that any relocation is in the best interest of the child.
Relocation disputes can be complex
The Courts have great discretion when it comes to determining whether the relocation of a child should be permitted. Each decision is case specific, and therefore, your particular circumstances play a great role in determining whether you will successfully relocate with your child. It is always best to seek legal advice regarding your particular, unique circumstances.