Family Law Blog

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

moving van

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 theses 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 few options if your intended move requires changing a separation agreement or court order and your ex will not agree to the change.  Watch this video for an explanation of the process for changing an existing court order or agreement.  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 cases.  Judges struggle with weighing the possibly of the children losing contact with one parent against the better life for the children and their family 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 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 to 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 question will not be allowed during trial.  The case has to be decided on what is on 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.

Ontario Family Law Podcast - Episode 23 - Why You Need a Last Will and Testament

10 - Child Support - Who Pays and How Much?

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 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 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 Suppot Guidelines, which allows for the amount of base child support to be reduced if one parent has “ sually 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 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.  

For more on child support, check out in this video and this podcast on child support.

Guide to the Basics of Ontario Family Law - 4th edition cover


To get more information on custody, access, moving with children, child support and other Ontario Family Law topics,   download this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or order the paperback version.  But, in a case as complicated as yours, it is always best to speak with a good family law lawyer.

Get_it_on_iBooks_Badge_US_1114
Available_on_Kindle_Badge_US-UK_146x40
New Kobo Logo



To find out if parenting coordination is right for you, or to get advice on any other form of parenting dispute, contact Certified Specialist in Family Law, John Schuman, by emailing him, calling 416-446-4036 or using the form below to contact him.  We respond to all inquiries promptly.


Please feel free to provide your comments on this page using the form below.  Also, if you have found this page helpful, share it with your social network so it can help someone else.  The sharing buttons are at the bottom of the page.


   

Child Abuse Reporting Requirements for Ontario First Responders (Paramedics, Police, FireFighters)

paramedics and children

Emergency First Responders in Ontario have a duty to report suspected child abuse and neglect that they come upon in the course of their professional duties.  Other professionals dealing with children have the same duty. They all must make that report to their local children’s aid society (here is a list.) Emergency First Responders must make the report about any child they come across in their professional duties - not just a child they have been called to assist. The Ontario Ministry of Health recently updated its standards for paramedics with regard to reporting child abuse or neglect.  However, the duty for paramedics and other first responders has not changed under section 72 of the Child and Family Services Act. This page answers some questions about that duty.


What is Reportable Suspected Child Abuse and Neglect?

The types of concerns that create a duty for a First Responder or other professional to report are set out in section 72 of the Child and Family Services Act of Ontario.  The types of concerns are quite broad and include:

  1. Physical abuse (hitting, slapping, burning, etc.) - even if it may be part of a course of discipline as what is permissible under criminal law may not be for child protection law.
  2. Physical harm caused by a caregiver’s failure to properly care for or supervise a child.
  3. Physical harm caused by a pattern of neglect.
  4. Any risk that a child may suffer physical harm as described above.
  5. Any sexual molestation or exploitation of a child or any act or omission that may put a child at risk of being sexually molested or exploited
  6. Any failure of a caregiver to prevent a child from being sexually molested or exploited.
  7. The person with care of the child refuses, or fails, to get adequate medical treatment for a child.
  8. The child is at risk of serious emotional harm that is characterized by: anxiety, depression, withdrawal, self-destructive behaviour or delayed development.  Note that it is not any type of emotional harm, but just emotional harm that is so serious it results in the type of damage described.  Also note that one of the most common causes for this type of emotional harm is when a child is exposed to adult conflict or domestic violence.
  9. The refusal of a caregiver to get assistance for a child who is at risk of the type of serious emotional harm as described above.
  10. The child suffers a mental, emotional or developmental condition and the care giver refuses to get assistance for the child.
  11. A child is abandoned.
  12. A child less than 12 years old has killed or seriously injured another person or done serious damage to property and the person looking after the child fails to get services or treatment to prevent a recurrence of that behaviour, or encourages that behaviour.


If a professional, including any first responder, is not sure whether to make a report, then he or she should report and let the “experts in child abuse and neglect” decide whether an investigation is warranted.  Alternatively, it is possible to make an anonymous phone call to the children’s aid society and ask if it is necessary to report what the first responder has seen.


How “Sure” Does a Professional Have to Be to Make a Report?

Professionals do not have to be certain that child abuse or neglect is occurring to have a duty to report to the local children’s aid society.  They only have to have reasonable grounds to have a concern.  That concern is not even that abuse or neglect is actually occurring.  All the concern has to be is that a child is at risk of suffering abuse or neglect as described above.  If any professional who assists children has reasonable grounds to believe that a child is at risk of abuse or neglect, then that professional has a duty to report.


To give an example, a first responder does not need to see suspicious bruises to have a duty to report.   All that is necessary is a parent, or other caregiver, threatening to hit a child to trigger that duty to report.


Where the report is based only on a suspicion of the risk of abuse or neglect, a children’s aid society may not opt to do much in response.  But, if a children’s aid society receives multiple calls about similar suspicions, then it may alert the agency to a child who is in really serious danger.  Children’s aid societies do not go out patrolling to look for children who are in need protection.  They rely on reports from the community, especially professionals, to alert them to children who need help.  This is why making reports of any reasonable belief that a child is suffering abuse or neglect or is a risk of suffering abuse or neglect is so important.


Who Has To Report Suspected Child Abuse or Neglect?

Every professional who deals with children in the course of his or her professional duties has a duty to personally report any reasonable belief that a child is at risk of the types of harm described above.


It is a personal duty to report directly to the children’s aid society.  The reporting cannot be passed on to someone else.  This means that is not sufficient for a first responder to advise a supervisor of suspicions of child abuse or neglect.  The first responder must personally call the children’s aid society.  


What Are the Reporting Duties for Supervisors?

If the first responder also alerts his or her supervisor of the suspicion, then the supervisor also has a duty to report what he or she hears directly to the children’s aid society.  The supervisor cannot rely on the first responder saying that he or she has already made the report.  When calling, the supervisor may want to make it clear that he or she understands that the person who reported the concerns to the supervisor said that he or she also reported the concerns to the children’s aid society.  That way the children’s aid society will know that multiple people have not made the same observations.  But, if the first responder forgets to call, then the supervisor making the call will avoid a child falling through the cracks.


Do You Have to Give Your Name When Reporting Child Abuse or Neglect?

Absolutely not.  Anonymous reports are fine and they do fulfill the duty to report suspicions of child abuse or neglect under the Child and Family Services Act.  Sometimes it can be better to report anonymously because a first responder (or other professional) does not want a parent or other caregiver to avoid calling for help in the future.  There are changes to the Child and Services Act that would prevent a children’s aid society from revealing the name of a non-anonymous informant to the family of the child.  Unfortunately, those provisions are not in force yet, so the children’s aid society is required to provide the name as part of the Family Court disclosure process.


When a first responder (or other professional) reports anonymously, it is important to keep a record of the report to avoid getting in trouble (see the possibility of being prosecuted for failing to report below).   When making an anonymous report, the first responder should ask the call-taker at the children’s aid society for his or her name or another way to identify and record that the call was made.  Then the first responder should include that proof of the call in an incident report or similar documentation so that the first responder can show that she or he made the call if there is a question about that later.


Keep in mind that if a front-line responder provides documentation to a supervisor or other manager that the responder felt her or she had an obligation to report suspected child abuse and neglect, technically, that supervisor or manager now also has a duty to report.  Just as the front-line responder cannot delegate reporting to a supervisor, a supervisor cannot delegate reporting to the front line responder. Supervisors (and other managers) must report any suspected child abuse or neglect to the children’s aid society him or herself.  Hopefully, if the front line responder reported anonymously, the supervisor does not then give the responder’s name or position to the children’s aid society.  Sometimes, it may be best for the front-line reconsider to keep the proof of having made the report with him or herself (in a safe place).


However, when conducting an investigation into suspected child abuse and neglect, child protection workers have a lot of powers. Section 74.1 of the Child and Services Act empowers them to get a warrant to access records in relation to a child if it will assist with the child abuse or neglect investigation. That can include a first responder’s records - especially ambulance call reports, which can form part of medical records. So if a first responder’s record of anonymously contacting a children’s aid society is attached to an ACR, or in a police officers notes, that responder may not be anonymous for long.  Hopefully, the management will carefully review the warrant and not give out any extra information (which could be a violation of other laws).  If the warrant does not specifically require the production of a specific document, it should not be produced to the child protection worker or his or her agency.


Does Patient Confidentiality Override the Duty to Report?

Section 72 of the Child and Family Services Act specifically states that it overrides all other statutory provisions, including laws regarding privacy and confidentiality.   The only privacy that is protected in solicitor-client privilege for lawyers to allow them to assist people who have a “conflict” with a children’s aid society.   So, all the rules about protecting patient’s health records (and the sanctions for failing to keep a patient’s health records) do not apply if there is a suspicion that a child’s welfare may be a stake. This protection does not apply if a person reports maliciously or without reasonable grounds for believing that a child might be at risk of child abuse or neglect.  However, preferring patient confidentiality over the duty to report  a real suspicion of child abuse to neglect can result in some serious sanctions.


Are There Sanctions/Punishments For Not Reporting Suspected Child Abuse or Neglect?

Professionals who have a duty to report suspected child abuse or neglect face serious consequences if they do not comply with their duty. At the moment, the maximum penalty for a professional who fails to report suspected child and any per incidence of failing to report, is a fine of $1,000.00.  However, the proposed changes to the Child and Family Services Act increase that to a maximum of fine of $50,000.00 and/or a jail term not exceeding two years.  Those amounts do not include the victim fine surcharge, the cost of hiring a defence lawyer or the time missed from work to go to court. 


In a recent Ontario Small Claims Court case, a Small Claims Court judge found a daycare operator liable for damages because she reported concerns about child neglect, but the judge believed she did not have reasonable grounds to believe the child was being neglected.  The Children’s Aid Society took more than two months investigating, and involved several doctors, before it could come to the conclusion that the child was not being neglected.  At the time of writing this blog, the case is under appeal, with the support of several Children’s Aid Societies, because they believe that the judge made an error in concluding it was wrong for a person to report suspected child abuse and neglect just so that the reporting person could not be charged under the Child and Family Services Act.  A person who thinks that he or she will be charged for not reporting child abuse must have reasonable grounds to believe that the child abuse was occurring, or at risk of occurring.  As noted above, the degree of suspicion is very low to trigger a duty to report.  In addition, as explained below, a first responder or other professional may have a duty to make multiple reports regarding the same child.



If I Report My Suspicions About a Child Once, Have I Complied With My Duty?

Section 72(2) of the Child and Family Services Act says that a professional who a duty to report has a duty to report every time he or she believes that a child is currently at risk of child abuse or neglect.  That duty exists even if the same professional has reported concerns about the same child, or even the same abuse or neglect.  Over time, if that a professional has a suspicion, or recurrence of a suspicion, he or she must report it.  The failure to report an on-going suspicion of child abuse can be prosecuted a separate incident of failure to report overtime the professional does not report.  That can result in multiple fines of up to $1,000.00 (with greater sanctions coming in the future).

Scared_Child_at_Nighttime

Is My Obligation To Report Limited to the Child I Have Been Called to Assist?

The professional’s duty to report relates to any child that the professional comes across in the course of his or her professional duties.  The duty is not limited to the child to whom a first responder is providing assistance.  For example, if a first responder is called to a home to assist and adult and while there, sees a child who has clearly been beaten-up, or is even acting suspiciously, the first responder still has an obligation to report the concerns regarding that child.


The general rule for emergency first responders is that if they have a real suspicion that a child is either being abused or neglected, or is a risk of being abused or neglected, that first responder must personally call the children’s aid society and report suspicions.  In addition, the first responder should keep notes of his or her actions.


For more information about child protection law, family law matters or children’s rights’ matters, contact John Schuman.  In addition to being a lawyer who is a Certified Specialist in Family Law, John is an Ontario Paramedic and so he also knows how the law affects Emergency First Responders.  Contact him by emailing him, calling 416-446-5847, or using the contact form below.  John responds quickly to all inquiries.


For additional information about children’s aid society investigations, child protection proceedings in family court and most other family law issues, get an immediate $9.99 e-book download of the Guide to the Basics of Ontario Family Law for KindleKobo, or iPad/iPhone/Mac or as a $25.00 paperback version from Amazon.ca (and other retailers).


If you found this page helpful, please share it on your social network using the buttons at the bottom of the page.  Fell free to comment on this page using the form below.


Contact John Schuman:


© John P. Schuman and John P. Schuman, Professional Corporation - 2012-2020