Moving With Children

Canada has an incredibly mobile population. It is common knowledge that every year vast numbers of people immigrate to Canada, yet often overlooked are the thousands of people who move between the provinces.

People move for any number of reasons, not least of which is to be closer to extended family, to move in with a new partner, or because of a new job in a different place. While these situations are undoubtedly positive, a move can also be difficult where a person has children from a previous relationship.

It is common to see court applications where a custodial parent wants to move to a new location and take their children with them. It is equally common to see an access parent oppose having their child move with the other parent. This quickly turns a debate about where a child should live into who should have custody over the child if the child is too young to make his or her own decisions.

When confronted with this situation, a court will consider what course of action is in the best interests of the child. Although a potential move may be considered good for the custodial parent and bad for the access parent, the best interests of the child far outweigh all other considerations. While the custodial parent’s views are entitled to great respect, there is no legal presumption in their favour. Because of how critical the best interests of the child are in making a decision, the Supreme Court of Canada has outlined a number of factors to consider in assessing a proposed move:

  1. The current custody arrangement and the relationship between the child and the custodial parent;
  2. The current 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 where it is relevant to the parent’s ability to meet the needs of the child;
  6. The disruption to the child caused by a change in custody; and
  7. The disruption caused to the child by removal from family, school, and the community he or she has come to know.

The application of these factors is highly fact dependent and often unpredictable. Going through the legal process can be daunting for a person who is not well-versed in the law. Because of this, they should discuss their concerns with a family law lawyer to ensure that they have the best chance of achieving a successful outcome.

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