201701.31
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Disturbing the Status Quo: What Parents should know before Relocating

Given the world we live in today, it has become normal for people to wish to move in the search of a better life elsewhere, whether it be a personal preference or to obtain employment.  As Canadians we are entitled to move throughout the country as we see fit, yet it should be qualified that ones’ ability to relocate can become frustrated if children are involved.  If you find yourself in a situation in which you are no longer in a relationship with the other parent of your child, there are several things you should know prior to making any plans to move.

Regardless of any custody agreement in place it is critical to note one cannot merely make a decision to move with their child of their own accord. There are of course many different arrangements regarding parental access and custody, all of which are unique to the parties in question. In some instances parents may reach a de facto agreement without the courts involvement regarding parenting, or alternatively custody and access may be determined via a court order.  Irrespective of your individual circumstances, when one parent voices their desire to relocate OR you find yourself in a situation where you are at risk of having your child relocate, it is important to know your options.

Disturbing the Status Quo

The status quo in this particular circumstance refers to the daily lives of the family and the child in question.  This includes but is not limited to the child’s life in so far as their daily interaction with friends and family, education, extracurricular activities and most importantly access to both parents.  Parental access will vary dependent upon the parents, their work schedules, ability to care for the children and the quality of care provided. Regardless of the particular situations alluded to above, the status quo established by both parents will be reliant on the fact that both parents live in close proximity of each other.  Disruption of the status quo is generally seen to not be in the best interest of the child but ultimately the decision will be dependent on the evidence before the court at the time.

Seeking to Relocate

The first thing you must remember is to provide due notice to the other party prior to moving. In the event the other parent is in agreement with the move, one merely seeks the access parent to approve the move in writing and you may proceed with your relocation.  Realistically though this is rarely the case as parents typically refuse to willingly accept limited access to their children from another jurisdiction.  One must also be aware that in the absence of a court order, regardless of the living arrangements of the child in question, parents will be seen as joint guardians. This requires all major decisions regarding their child’s life to be reached together. The possibility of relocating to another town would fall within the ‘major decisions’ category. Therefore when the move is protested by the other party, the parent seeking to relocate regardless of the reasons should make an application to the court to vary any custody agreement to permit the proposed move.  It is critical you do not choose to move on your own without permission to do so from the other parent or the court as you may be ordered to return with your child at your own cost. The courts are generally of the opinion that one must not simply move unilaterally, knowing the move will be controversial and then consequentially argue they would be at a disadvantage financially in regards to employment, living arrangements or otherwise if required to relocate back to their previous town and ask for permission later.

One must remember that often the courts will grant a relocation, their position being the court shall not interfere with the day to day lives of Canadians as seen at the Alberta Court of Appeal in MacPhail v. Karasek, 2006 ABCA 238 (CanLII) para. 44:

“Canadians have the right to choose to separate and divorce, and they have the right to relocate, and it is not for the courts to determine whether they like or agree with the reason for separation or moving. Custodial parents should not be faced with a potential loss of custody simply because they choose to move. Nor should a decision to move be seen automatically as a negative factor in the ability to parent.”

When applying to the court for a relocation there are several factors which come into play, most of which can be found within Gordon v. Goertz [1996] 2 SCR, 1996 CanLII 191 (SCC).  This Supreme Court case enumerated a two-stage test to be applied per each individual case.  First you must establish there is a “material change in circumstance”. If you successfully pass the first test, the judge will then determine what is in the best interests of the child.  Upon determining a material change your child’s best interest will be given the highest priority, without any presumption or onus in favour of either parent, albeit the custodial parent’s views are entitled to be granted “great respect”.  Justice McLachlins’ summary of what should be taken into consideration in determining the best interest of your child are found at para 49:

  1. the existing custody arrangement and relationship between the child and the custodial parent;
  2. the existing access arrangement and the relationship between the child and the access parent;
  3. the desirability of maximizing contact between the child and both parents;
  4. the views of the child;
  5. the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
  6. disruption to the child of a change in custody;
  7. disruption to the child consequent on removal from family, schools, and the community he or she has come to know

The judge will assess each case upon the facts presented by either side in addition to the relevant law.  Depending on your personal circumstances there are primarily to pieces of legislation which are applicable, the Family Law Act, 2003 c F-4.5, s 18. along with the Divorce Act, R.S.C., 1985, c 3, s 16.

Stopping Relocation

If you find yourself in a situation where the custodial parent has already relocated without your consent or knowledge, all is not lost. The courts position on unilateral relocation can be found in recent case law, in Fallis v. Decker, 2013 ONSC 5206 (CanLII) at para 26 the court stated, parents who act on their own and fail to disclose information regarding a change in the status quo, do so at their own peril.  “The court simply cannot sanction self-help in circumstances where the best interest of children may potentially be jeopardized”. The core principal here being the best interest of the child.  Justice Pazaratz goes further to say, “Of all the considerations, the suggestion that ‘it’s too late to change things now’ has to be given the least weight.” A parent acting alone is not permitted to unilaterally change a custody agreement.  In situations where a parent acts without making an application for a change in custody, the judge will likely order the parent in breach of the custody agreement to return to their previous location of residence until further assessment can be completed. In Cardinal v Tatum, 2004 ABQB 672 (CanLII) the court insisted the child be returned to the town of previous residence in the short term until the court could make a full assessment.

You have obtained an order from the court ensuring the custodial parent does not move without a trial to evaluate all the evidence; now what? Essentially the determination of the judge’s decision will be dependent on the facts of your individual circumstances and how they are tested in terms of the criteria highlighted above in Gordon v Goertz. The two stage test will be applied, the first being meeting the “material change in circumstance” followed by the best interest of the child.  Note that regardless of your position the same test applies and can also be successful in barring a relocation as in T.F.H v. N.H., 2012 ABQB 654 (CanLII).  Justice R.A Jerke found, the children were to remain in their current residence with their father as it was found to be in the best interest of the children.  In this case both parents appeared to very equal in the support they could provide the children and additional support in both locations from family was the same. Yet the disruption of the status quo was not permitted at that time.

As you can see the courts have been found to rule in favour of both sides when it comes to relocation.  Admittedly the law on relocation and mobility is very complex and requires the sound advice of lawyer. If you find yourself on either side of a potential relocation please contact the team at Don Scott McMurray Law Office at 780-750-9888.