When parents get divorced or separated, one of the most difficult issues to work through can be when one of the parents wants to move with the children. These issues can be negotiated between parties through mediation, but they can also require a trial if the parents are not able to come to a resolution on their own. In a recent decision from the Ontario Superior Court of Justice, the court was asked by the mother to grant an interim motion, allowing her to move from Oakville to Sarnia while awaiting a full trial. The father told the court there are significant reasons to keep the children in their current home.
Mother looks to relocate with children
The mother brought the motion seeking permission to move from Oakville to Sarnia with the parties’ children, aged 10 and 7 at the time of the trial. She had a number of reasons supporting her request. She told the court that she currently rents a home in Oakville but had purchased a home in Sarnia which was larger than the one she rents. She also told the court she has family in Sarnia who can provide her with a support network. She stated that she has better job opportunities in Sarnia. Finally, she alleged that the father had been abusive to both her and the children during their marriage.
The father, who currently has access to the children on alternate weekends as well as one day each week, opposed the move. He said the motion was premature, and there is a great deal of information about the needs of the children that had not been shared with the court. He told the court that their older child suffers from a variety of mental health maladies, including Autism Spectrum Disorder, Attention Deficit and Hyperactivity Disorder, and Generalized Anxiety Disorder. The father said the child had had significant behavioural problems, including run-ins with the law and threats of self-harm. He said he was concerned that the wrong decision made without complete information could end up being irreversible, causing damage to the child’s mental health and the relationship between the children and the father. Finally, the father told the court that another judge had requested the involvement of the Office of the Children’s Lawyer (“OCL”) but that no decision related to whether that request would be approved had been made.
The only consideration is the best interests of the children
Ontario’s Divorce Act states that the only consideration a court may consider when making parenting decisions that affect children are the child’s best interests. There are a number of factors that can be considered when determining the best interests of the child. While we won’t list these verbatims, they can be found in the decision. However, some factors are specific to relocation. The court quoted these as being,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
With the mother being the parent who requested to relocate with the children, it was her job to demonstrate that a move would be within the children’s best interests. The court said that this case specifically only deals with a motion to move prior to a trial which would ultimately resolve that issue.
The court found that the motion was ultimately premature in light of the father’s unresolved concerns. However, the court took a moment to address the mother’s argument, stating that she appears to be able to work remotely even though her job is technically based in Sarnia, making the move unnecessary for financial reasons. While the mother had purchased a home there, the court told her that she had done so without first getting approval to move and that its decision could not hinge on the purchase of a home. The court acknowledged that the mother has a family closer to Sarnia, but there was not any evidence that stated being closer to the family would benefit the children at this time.
Ultimately, the court wrote that the children’s best interests are hard to determine at this point and that the involvement of the OCL would help gather the information needed to make a decision on relocation at a later point.
Johnson Miller Family Lawyers can help you in the event that you or your spouse want to relocate with children
The experienced family law lawyers at Johnson Miller Family Lawyers have extensive experience helping clients through difficult situations related to shared parenting as well as relocation of a spouse or children. To make an appointment to speak to one of our lawyers about anything related to family law, please contact us online or by phone at 519-973-1500. We serve clients in Windsor, Essex County, and throughout the region. We look forward to talking with you and exploring how we might be able to help you today,