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Can I Move Away With The Kids After Divorce Even If My Ex Disagrees?

Family law cases where one parent wants to move with the children, which are called “mobility cases” in Family Court, are always difficult cases. Judges find them very difficult cases to decide, especially where the children could lose a good relationship with one parent. The video below explains these cases:

A big part of whether you would be permitted to move is what your separation agreement (or your child custody/access order) says about moving with the kids. A first step is always seeing what (if anything) your separation agreement or court order says about changing the location of the children’s home.

There are a few options if your intended move requires changing a separation agreement or court order and your ex will not agree to the change. The process for changing an agreement or order without your ex’s consent involves going to court. The procedure for changing an order or agreement should be simpler than getting an order in the first place, but it may not be much easier if there are a lot of contested facts in your case. At one of the first court appearances, a judge will likely decide whether you can use a simplified court procedure or not. 

Unless there is something in the agreement or court order that restricts where the children can live, it should not really matter where you live, as long as it does not upset the access schedule. If the access schedule remains the same, then it should not matter whether you move. And, if you are willing to make arrangements regarding the travel, there is little basis on which your ex can oppose the move.

I must mention that anyone who tells you how a judge would decide any case regarding moving with children is not telling you the truth. While there are cases, even Supreme Court of Canada cases, on moving with children, they all say that the judge must make the order that is in the best interests of the child. Further, while there are specific factors that judges must consider when deciding all parenting cases, it is not always clear how each judge will apply those factors to a specific case. Judges struggle with weighing the possibility of the children losing contact with one parent against the better life for the children and their families if they move. Judges often say these are the most difficult cases that they face. They can decide either way. 

The ties of the children to each parent can be an important factor in whether the children can move away with you. So, if the children do not have much of a relationship with your ex, then it is easier to justify the move. Also, if the move will not mean much of a change in the children’s relationship with the other parent, it is easier to justify the move. If the move will jeopardize and good and important relationship with a parent, then the case becomes more difficult. Finding a new parenting schedule that allows the children to maintain relationships with both parents after the move makes it easier for a judge to approve the move.

Despite the above, there is a rule of evidence in Ontario Family Law that it is not appropriate during cross-examination for opposing counsel to ask a parent who wants to move whether he or she will still move away without the child if the judge says the child cannot move. That obviously puts the parent who wants to move in an impossible situation, and the question may be impossible to answer. So, judges have decided that questions will not be allowed during the trial. The case has to be decided on what is in the children’s best interests, not based on whether the moving parent can be scared into giving up his or her plans. 

Another consideration comes up when the moving child has siblings or step-siblings who will be moving away for sure. Unless the child has a bad relationship with siblings, judges consider maintaining the sibling relationship as very important. So, if a child is very close with half-siblings from the moving parent’s new relationship, and those half-siblings are making the move, then that may influence the judge in favour of allowing all the children to move away together.

The judge has to consider the other factors that affect the best interest of the child who might be moving. One important factor, even though many cases say it should not be a factor at all, is the reason for the move. If a parent is moving the kids to frustrate the relationship with the other parent, then the move will not be allowed. If the parent has to move for economic reasons, the judge may be more sympathetic but may want to hear what efforts the moving parent has made to address the economic issues without moving. And, once the parent has to move, and has no choice (which can be the case if a new partner has to move), then the judge will have to consider which parent the children should live with. In that case, judges usually prefer the parent with whom the children have been primarily residing or have the closest relationship – unless the move would somehow otherwise be bad for the kids.

One important point: DO NOT just move away with the kids without getting the court’s permission first. In those cases, judges are prone to order the kids to be moved back and may be reluctant to permit the move again. This is because the parent who made the unilateral decision to take the kids away looks like a parent who is trying to keep the kids from the other parent. Judges do not like that – even in emergency situations. The courts have procedures for hearing matters on an emergency basis so a parent should always ask the court’s permission before moving away with kids against the wishes of the other parent.

You really need to speak to a good family lawyer about all mobility cases. There is a lot that goes into planning a move and how to position yourself to make it more likely you will get the move.

A factor that may come into the negotiations, even though it probably should not if everything is about what is best for the child, is child support. Section 10(2)(b) of the Child Support Guidelines, allows for the amount of base child support to be reduced if one parent has “usually high expenses in relation to exercising access to a child.” Those “unusually high expenses” are usually travel expenses. So your spouse might get a break on child support (or might not) if he has to pay travel expenses to continue his access. Other than in these special circumstances, section 33(14) of Ontario’s Family Law Act and section 15.1(5) of the Divorce Act say that the Child Support Guidelines are mandatory. Parents cannot just agree to an amount of child support that is different from the Child Support Guidelines. They have to be able to prove that their child support arrangements benefit the children as much or more than the amount owed under the Child Support Guidelines. Some spouses MIGHT consent to a move if they can get a break in child support to cover the additional travel costs for visiting the kids.

John Schuman Guide to the Basics of Ontario Family Law book cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

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