If you have been the primary custodial parent and you are thinking a move won’t affect the current parenting arrangements in place, you may be wrong. A move is a change in circumstances that significantly impacts the contact a child will have with the parent who does not provide the child’s primary residence after the move. When one parent is planning to relocate, notwithstanding the new Family Law Act presumes the existing primary residency may be maintained, this is a rebuttable presumption thus parenting arrangements can become open to review and reconsideration. Further, the Supreme Court of Canada has stated that when a relocation of a parent occurs a fully rounded analysis is required and the “status quo” is not to be preferred.
If you have been sharing parenting time, the best arrangements for your child when one parent is planning a move may be even more difficult to determine as it is a real change to the status quo and the analysis can become more complicated.
Thus, regardless of the current parenting arrangements, if you or your ex-partner is planning to move, it is important that you plan to engage each other and consider what a move means from the perspective of your child.
However, this does not mean that your child should make the decision about where he or she wishes to reside if a parent moves. The fundamental principle in determining custody and access when a parent “relocates” is the best interests of the child. The views of your child is a significant factor, but the amount of weight given to your child’s views is contextual and will also depend on his or her age. Additional factors included in the legal analysis include: existing and past agreements and orders regarding parenting arrangements; desirability to maximize contact and not disrupt your child’s relationships, including relationships with extended family and other social support; educational and psychological factors; security of employment and other parental circumstances, the reasons a parent is moving and all additional factors involved in the usual test for the best interests of the child.
Due to the breadth of the legal factors that must be considered to resolve these cases, when parents cannot agree, they can take time to resolve as they have the potential to become highly contentious and expert opinion evidence is required. However, engaging a lawyer early on can help to minimize the conflict and speed up the agreement process. For instance, a client recently told me that he was amazed at how engaging a lawyer and allowing legal professionals identify the broader issues and separate the emotion helped him and his child’s mother consider the issues around the move in a reasonable way. Within less than two months, we negotiated an arrangement in that case that left both parents happy.