How does the court decide whether I can relocate with my children after leaving my partner?

In an earlier blog post we looked at how recently revised laws have different rules about moving depending on the impact of the move on children’s time with their other parent, which is usually a result of how far you are moving from the other parent. A “change of residence” is the term for a low impact move, while a “relocation” is seen as having a greater impact. In this post we look at the family court processes when the other parent (or others) disagree with a plan for relocating with a child.

When there is disagreement about the children’s relocation

If you are planning to relocate with your children and their other parent or anyone who spends time with them under a contact order does not agree, the court will determine whether the move is in the best interests of the children, taking into account a number of factors:

  • The reasons for the relocation
  • The impact that the relocation will have on the children
  • The amount of time you and the other parent spend with the children
  • The level of involvement you each have with the children
  • Whether the existing order or agreement specifies the geographic area in which the children can live
  • Whether the new parenting/contact arrangement you are proposing is reasonable
  • Whether each parent has complied with parenting obligations to date and how likely you each are to comply in the future
  • Whether you have given the proper notice

If you and the children’s other parent have roughly equal parenting time with them, then you will have to convince the court that the move is in the best interests of the children.

If the children spend most of their time with you, then the other parent will have to convince the court that the move is not in their best interests.

The court is not allowed to consider whether you would move even if you were not allowed to take your children.

What evidence do I need to support relocating with my children?

If the other parent of your children objects to your plan to relocate, both of you will have the opportunity to present evidence to the court to support what you want. The court will be focused on what is best for the children, in the context of the existing parenting arrangements.

You need to have a good reason for wanting to move:

  • You cannot find a job where you live now, but you have found a good job in another city.
  • You need the support of family members who live elsewhere.
  • You have entered into a committed long-term relationship with someone who lives somewhere else and cannot relocate to where you live.
  • You need to move for safety reasons; for example, your former partner continues to harass you, is ignoring a restraining order, has been criminally charged since you finished your family law case.

You need to show that you are taking steps to minimize the negative impact on the children:

  • They can remain involved with similar extra-curricular activities.
  • The move will take place at the end of the school year so there is minimal disruption to their education.
  • You have made plans so they can stay connected to friends and family where you live now.

You have to let the court know about the amount of time you and the other parent spend with the children and the level of involvement you each have with the children:

  • Provide evidence about who the children spend their time with and how that time is spent:
    • Who does the school call when a child is ill or there is a problem at school?
    • Who takes the children to the doctor and dentist?
    • Who helps with extra-curricular activities?
    • Does one of you spend substantially more time with the children and have considerably more responsibility for their care?

The court will consider whether the existing order or agreement specifies the geographic area in which the children can live:

  • Let the court know what the current order or agreement says about where the children can live.
  • If there is a geographic restriction, explain why this was put in place and what has changed since then.

You need to show that your proposed new parenting arrangement is reasonable:

  • Your proposal for how the children will spend time with their other parent after you move must be reasonable, so you should not present a plan that dramatically reduces the amount of time – in person and otherwise – that the children spend with their other parent.
  • If they now see their other parent in person frequently, can you reproduce this after you move or will you suggest less frequent but longer visits?
  • Will you need to make different arrangements for your children depending on their ages?
  • How will the children get to and from their time with the other parent, and who will be responsible for this logistically and financially?
  • Can you set up other ways for the children to connect with their other parent, such as Zoom or Skype visits, cell phones so they can talk and text, email accounts, etc.?
  • Are you prepared to fund some of the costs of the new parenting arrangements, either out of pocket or by accepting a lower rate of support?

You need to show that you have complied with parenting obligations to date and that you will comply in the future:

  • If you have ever not met your parenting obligations in the past, you need to be able to explain way and tell the court you will comply in the future
  • If the other parent has not fulfilled their obligations and if you have doubts they will in the future, provide evidence to support this

You must have given the proper notice:

  • Make sure you have provided at least the minimum 60 days’ notice of your plan to relocate and have evidence of this to show the court

What if it’s not safe to tell my children’s other parent that I am planning to move?

Whether your move is a change of residence or a relocation, the court has the power to waive the notice requirements if it believes that is appropriate, including if there is a risk of family violence.

If this is your situation, you can apply to the court, without providing notice to the children’s other parent, to have the notice requirement and/or the information included in the notice, waived.

What should I do first if I’m thinking about moving?

If you are thinking about relocating with your children, you should talk with a women’s advocate or a Family Court Support Worker (FCSW). She can help you get your information organized and assist you in talking with a lawyer. The lawyer can give you legal advice about the steps you need to take as well as about whether or not they think you have a strong case to support your move. If you need a lawyer, you can use the Luke’s Place Virtual Legal Clinic.

If you have concerns about your safety, make sure your lawyer knows this right away. Do not discuss your possible move with your former partner or anyone who might tell them about your plans.

Avoid talking about the possible move with the children or when they might be able to overhear you. Don’t leave emails open or other information related to your possible move where your children could see them. You don’t want them to become upset or excited about something before you know it will happen, and you don’t want them to have information your former partner might try to get from them.

Work with your women’s advocate to develop a safety plan during this time.