On behalf of Gary Kirk of Kirk Montoute LLP posted in Family Law on Thursday, June 30, 2016.
In Canadian society today, moving to a new town, a different province or even another country for a new job, a promotion or a relationship, is not uncommon. Of course, relocation becomes much more complicated when the person who wants to move has custody of a child from a previous marriage for a significant amount of the time. The other parent usually has the legal right to object and ultimately the question of whether the parent can move and take the child may end up before the court.
First, there may be a court order or a settlement agreement from the divorce that provides what will happen if the parent wants to relocate. If the order or agreement says that the parent can move without notifying the other parent or getting his or her consent, then the move can normally happen without the involvement of the other parent or the court.
Otherwise, the other parent in most circumstances has the right to object. Instead of filing a mobility application with the court, the parties may be able to negotiate an agreement that resolves the relocation issues and develops a new arrangement for parenting time. Since easy visitation will not be available if the move is a significant distance, they may negotiate longer visits with the parent that remained behind during holidays and summers, or provide for extensive online communication between the child and that parent. The agreement could provide that the parent moving pay for or provide appropriate transportation for the child to and from the other parent’s residence.
If the question ends up in court, the judge must decide whether the relocation would be in the child’s best interest, according to the leading Supreme Court of Canada case of Gordon v. Goertz. This case lays out with explicit detail how the judge is to proceed and what factors to consider in determining whether a proposed relocation is in the child’s best interests.
In our next post, we will discuss this case further.
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