Moving is a very common part of divorce. Often a matrimonial home must be sold as part of the settlement and both parties need to decide on another place to live. This can be complicated especially if kids are involved. What if one party wants to move to a completely different city? Is that possible with children in the picture?
The short answer is yes. But it can be complicated.
If you are the sole guardian of the children, have sole custody or if there is a written agreement or court order permitting you to move without the other parent’s consent it is definitely possible. However, if you have joint custody of the children there is a lot more that needs to be considered.
Relocation disputes can be extremely difficult and costly and unsurprisingly the issue has generated a lot of case law across Canada. If at all possible it is best to avoid them. It is always best to talk about your relocation plans with your ex before finalizing them. Providing plenty of notice might stop your ex from filing an urgent court application to keep you from moving. Communication is key because more often than not things can be worked out with compromise and collaboration, keeping the courts out of the process.
What is a relocation application?
Relocation applications are applications made to a court to be able to relocate with your children. They can be refused by Canadian Courts in situations where there is a joint or shared custody agreement. For a relocation application to be successful the moving parent must prove that:
- The custodial parent’s reasons for relocation are relevant to their ability to meet the child’s needs and,
- It is either possible to facilitate continued access to the other parent, or the other parent does not have a positive relationship with the child.
In short, a relocation application will succeed if the court decides it is in the best interest of the child.
How are the best interests of the child determined?
Judges usually act to minimize the disruption in the stability of a child’s life after separation. The court will balance any disruption to the child’s life caused by being removed from their home, school and community against any change in custody arrangement. It must be proven that the relocation will be of benefit to the children even with the disruption of the move.
Every case is different, and a court will evaluate it as such. It is always advisable to get legal advice if you are planning to make a move with your children post divorce.