When Might Courts Approve a Parental Relocation?
Sep 7, 2023
Whether it requires divorce mediation or intervention through the courts, one of the trickiest situations separated or divorced parents can face is parental relocation.
Parental relocation is a move that could have a drastic change to the parenting time schedule. This is different from a move across the city, which would be considered a change in residence. Such a move might only result in minor changes to the child’s school and parenting schedules.
Parental relocation is when a parent moves to a different region, province, or country, and may restrict one parent’s access to the child, and completely change the child’s schooling, friends, and lifestyle. Parental relocations generally occur as a result of changes in job opportunities, housing, or major life changes such as remarriages.
Divorce Mediation: How Does the Law Handle Parental Relocation?
Under today’s laws, in most cases, it is assumed when parents separate or divorce that both parents will share parenting responsibilities in some manner. During the process of separation, parents may create a parenting plan together, or go through a process of divorce mediation, negotiation, or litigation to come to an agreement.
A parenting plan sets out how much time children will spend with each parent, where they will live, and who will have the authority to make decisions (joint, sole, or shared).
Once finalized, further changes to an agreed-upon parenting plan can also be resolved through agreement between the parents, divorce mediation, negotiation, or litigation.
In Ontario, parenting agreements, and parental relocations for children of unmarried parents or common law marriages are covered by the Children’s Law Reform Act, while stipulations for divorced parents are in the federal Divorce Act. Both were recently revised in March 2021.
Applying for a Parental Relocation
Under both pieces of legislation, if a parent intends to relocate, and they have parenting time or decision-making responsibilities (formerly “access” and “custody”), they must provide a Notice of Relocation, informing any other person who has parenting time, at least 60 days before the proposed move.
That means even if one parent has sole decision-making responsibilities regarding their child’s health and well-being, they cannot decide to relocate without notifying the other parent(s).
Since most parents share parenting time and/or decision-making responsibilities, they will need to go through the notification process.
Best Interests of the Child
Like any family law case involving children, if it goes to court, the judge will weigh the decision against the best interests of the child. The parent requesting the relocation has the burden of proving the move is in the child’s best interest. The law generally assumes that having access to both parents is in a child’s best interest, so the bar for approving the relocation is a high one.
Are Parental Relocations Ever Granted?
While the bar for relocation is high, there are cases where the best interests of the child standard is met. If the other parent disagrees with the ruling and issues a stay of relocation, they must prove there would be irreparable harm if the court does not grant the stay.
In Sidiqi v. Ahmadzai (2022 ONCA 604), the Ontario Court of Appeal upheld a lower court ruling granting the relocation of a 9-year-old child from Ottawa to Richmond Hill with her mother, stepfather and two step-siblings. In this case, the child indicated that they rarely saw their father, and expressed a preference to live with their mother. The judge was satisfied that the move would not cause irreparable harm to the child.
In a recent case under the federal Divorce Act in British Columbia, the BC Court of Appeal similarly dismissed a stay of relocation in K.S.P. v. J.T.P. (2023 BCCA 303). In this case, the mother was seeking to relocate with her two children to Germany. The trial judge in the original ruling granted the relocation, determining it was in the best interests of the children partially to help insulate them from the effects of family violence.
Preparing a Case for Relocation – Kelly D. Jordan Family Law Firm
If you are a parent looking to relocate or wish to stop a relocation, you may wish to consider divorce mediation or negotiation prior to going to court. In any case, the family law team can help you prepare your Notice for Relocation, and advocate on behalf of you and your family. Know the law and be prepared. Contact the Kelly D. Jordan Family Law Firm today.
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