Will the Courts Let You Move Away With Your Child?

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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 weekend. 

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.

Mobility and "Good Faith"

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 interest. 

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

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At Hemminger Law Group we commit to providing you with the highest quality legal information on this website. However, nothing on this website should be construed as actual legal advice. Every case is different and it is important that you consult a lawyer before making any decisions with respect to a legal matter.

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