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We blogged last week about how the courts handled an issue where separated parents could not agree on which school to send their child home. Such issues can be difficult to manage and are similar to another topic that we see come up from time to time, which is what happens when one parent wants to move, with the child, to another city (or province or country). That was an issue recently dealt with by the Ontario Superior Court of Justice.
Mother looks to move with children
There are three children involved in the situation, two are between the father and the mother, while the oldest child is the mother’s from a previous relationship.
The mother and father began their relationship in 2015, though the court said it was not stable through to their separation in March 2019. By December of that year, they obtained a home where the mother lived with the kids upstairs and the father lived downstairs. However, this arrangement only lasted for 36 days. By January 2020, the mother had moved with the children from the Ottawa area to Kingston.
An urgent motion was filed by the father, and an order was made stating that he would have parenting time with the children each Friday evening, lasting until Monday mornings. The parenting time would take place in Ottawa, and it would be the mother’s responsibility to drop them off in Ottawa, while the father would have to return them to Kingston. However, the father still opposed the move and was seeking an interim order to prevent it.
What should be considered when a parent wants to move with children?
The court referenced the Children’s Law Reform Act, which states that when an issue related to custody and access of children arises, the court should consider the following needs and circumstances:
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
In addition, the court noted that the Supreme Court of Canada issued a decision in 1996 that stated the ultimate question is what is in the child’s best interests? The Supreme Court noted that there is no legal presumption in favour of the de-facto custodial parent (in this case the mother) and that while the existing parenting arrangement should be considered, the wishes of the custodial parent to move are only considered if they are relevant to their ability to meet the needs of the children.
In this case, the court determined the mother and children should be permitted to remain in Kingston, at least on a temporary basis. The court thought the mother has a good chance of being able to move when the issue goes to trial, adding that the move seemed to be in the children’s best interests.
To speak with an experienced Windsor lawyer about child custody or support, call 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors, and other professionals.
