Mobility is a challenging question for for co-parents who
live apart. What happens when one of them wants to move away with the child? The Family
Law Act sets out the test that a
parent who wishes to relocate must meet in order to be allowed to move a child
away from her or his other parent.
The first question is whether or not the
child spends substantially equal time with each parent. For example of the child spends a week with
each parent on a rotating schedule, the relocating parent will have a slightly
different test to meet than if the child only sees the other parent every other
In both situations the relocating parent
must give at least 60 days notice to the other parent (and or guardians or
anyone who has contact with the child). The notice must include the date of the
move as well as the location. If the
other parent does not file an application to prevent the move within 30 days
then the relocating parent may move.
The relocating parent also must propose
what they suggest as an arrangement that will preserve the relationship between
the child and the other parent. The courts
have held that a relationship may be preserved by less frequent, but longer
periods of parenting time.
When looking at mobility, the relocating parent will also have
demonstrate that the proposed move is being made in good faith. The reasons for the move are relevant, for
example, if a parent is moving for a job that will be a positive factor for the
moving parent. The court will also ask
if the move will enhance the quality of life of the child. A parent whose stress level and health will
improve from a move will likely be able to show that
an improved situation for them will result in an improved situation for the
child. The court will also consider if
proper notice was given, and whether there are any existing orders or
agreements regarding relocation.
Interestingly, the court may not consider whether a parent will still
move, even if their child is not permitted to
move with them.
If the parents do not have substantially
equal parenting time, and the above factors have been met, the court must find
that the move is okay to proceed, even if the other parent disputes it.
If the parents do have substantially equal
parenting time, then in addition to proving that the move is in good faith, the
relocating parent must prove that the relocation is in the child’s best
Although some parents may be tempted to move without taking the proper steps and providing
adequate notice to the other parent, the courts will take a poor view of such behaviour and it could negatively impact the
relocating parent’s position in court.
This article was written by Alison Eustace, lawyer at Hemminger Law Group
Contact us to meet with Alison for a consultation about your question regarding mobility.
Return from mobility