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Family cases in which a parent wants to move with a child and change their residence can be among the most challenging. These changes can significantly impact those with parenting time or decision-making responsibility, challenge existing parenting arrangements, and affect a child’s relationships. Each case will be fact-specific, but courts will look at the child’s best interests and consider their physical, emotional, and psychological safety, security, and well-being.
Mother Unilaterally Changes Child’s Residence
Versteegh v. Kerr was a case where the parties had been unmarried, and the father sought an order requiring the mother to return their two children to the town where they had been residing for 21 months following their separation. He alleged that the mother moved the children and failed to comply with the notice requirements set out in section 39 of the Children’s Law Reform Act (CLRA). In response, the mother claimed the move was in the children’s best interests and was beneficial to them. The father had arrived at the children’s school to take them for his week of parenting time. However, the mother arrived at the same time and refused to permit him to take the children. Around the same time, the mother moved the children from St. Thomas to Woodstock to live in her boyfriend’s residence. The mother did not tell the father that she was moving, why she was moving, or give him the address where the children would be residing. The father subsequently missed several weeks of parenting time. Additionally, the father’s driving time to retrieve the children more than doubled following the move.
Moves by individuals who have decision-making responsibility or parenting time with a child are addressed in two sections of the CLRA. Section 39.1 deals with moves that are a “change in residence,” while Section 39.3 addresses parental moves that are “relocations”. The judge explained that these are two distinct concepts. The term “change in residence” is not defined in the Act, although “relocation” is. A relocation is defined as a change in residence of a child or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with:
- another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child.
The CLRA sets out minimal obligations for a person undertaking a child’s change of residence. These include providing written notice to others who have decision-making responsibility or parenting time with the child. The notice must also indicate the date the change is to occur, as well as the new address and contact information. However, there are more stringent obligations for a child’s relocation. Notice must be provided in the prescribed form at least 60 days before the proposed relocation. Additionally, notice needs to include “a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised”.
Court Weighs Whether a Move is Likely to Have a Significant Impact
The judge had to determine whether the mother’s move with the children constituted a relocation. This required assessing whether the move was likely to have a significant impact on the children’s relationship with the father. In Hiebert v. Hiebert, the judge recognized that few cases have explored the differences between relocation and a change in residence.
In Alix v. Irwin, the mother moved with the parties’ five-year-old son to a community 1.5 hours from where they had resided. The father sought to have the child returned to his original community. The judge initially dismissed the father’s application; however, the decision was reversed on appeal. The Court explained that the analysis revolves around whether there has been a material change in circumstances. Citing Gordon v. Goertz, the Court explained the process requires considering whether the change: (a) alters “the child’s needs or the ability of the parents to meet those needs in a fundamental way, (b) “materially affects the child”, and (c) “was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order”. The Saskatchewan Court of Appeal concluded that the judge originally erred by only considering only the distance between the locations, and failed to examine the “logical and unavoidable implications for the child’s relationship with” the father that arose from the fact the child lived further away.
Courts do Not Focus on the Distance Involved in a Move
In D.T.D. v T.A.J., the Court looked at Alix and concluded that the distance arising from a move is not the controlling factor in deciding whether there is a “relocation”. Instead, it is necessary to examine the impact of the move on the child’s relationship with the non-moving parent. But in this instance, the judge focused on the mother’s move, which involved a short additional fifteen-minute commute, and concluded it did not have a significant impact on the interim parenting arrangement. On appeal, the father argued that the judge was required to conduct a broader assessment than focusing solely on the additional commuting time. The Court agreed, noting that the focus must be on the best interests of the child, and that a contextual analysis is needed to determine whether a proposed move will have a “significant” impact on a child’s relationship with the non-moving parent. The Court proceeded to set out some relevant considerations, including:
- Whether and how the move would change the amount and frequency of parenting time for the non-moving parent.
- Whether and how the move would affect the degree of involvement of the non-moving parent in the child’s activities, schooling and so forth.
- Whether the moving parent is willing to bear the burden of any increase in the commuting time.
- How the distance or commuting time between the two residences would affect the quality of the child’s relationship with the non-moving parent; and
- Whether the non-moving parent has the ability – financial or otherwise – to commute to and from the child’s proposed new place of residence or an intermediate location.
In Versteegh, the evidence indicated that the proposed move would increase the father’s driving time to the child’s new residence by an additional 26 minutes. This would be necessary for him to exercise his parenting time. But Justice Price did not believe that by itself would significantly impact their relationship or make this a relocation case. However, additional analysis was required. In Hiebert, the Court confirmed that at “a child’s best interests are part and parcel of the more fundamental question of whether the proposed move is a relocation”. Consequently, the child’s best interests still needed to be weighed when reviewing the proposed change in residence. The judge proceeded to examine the factors for determining a child’s best interests set out in section 24 of the CLRA, along with additional factors relevant to deciding whether to authorize the relocation of a child set out in s. 39.4(3).
Evidence Must Indicate that the Status Quo is Not in the Child’s Best Interests
In deciding whether the move was in the child’s best interests, the judge considered the status quo that existed before the move. Previous cases have held that it is necessary to have compelling evidence that a child’s welfare would be in danger before disturbing the existing status quo. And that evidence must clearly demonstrate the status quo is not in the child’s best interests.
But in this instance, there was nothing in the evidence which “clearly and unequivocally” suggested that the children’s welfare would be in danger if the status quo was maintained, or that their best interests required an immediate change. The mother’s primary concern was the lack of a firm parenting schedule for the father, and she also expressed concern about risks to the children while they were under the father’s care. But Justice Price stated that those concerns could have been addressed by applying to the court and did not require removing the children from their school or moving to another town. Instead of pursuing the solutions available to her, the judge felt the real reason for the move was to allow her to reside with her boyfriend. Therefore, it was not possible to conclude that the move was in the children’s best interests. Instead, the judge echoed that parents cannot resort to self-help remedies and expect courts to approve of the changes. The mother was to return the children to their residence in the city of St. Thomas.
Judges Discourage Self-Help Parenting Measures
Parents who wish to change their place of residence must ensure that they follow the proper procedure before undertaking a move. Courts will consider the existing status quo and whether the proposed move is in a child’s best interests. Parents who relocate unilaterally may jeopardize their child’s interests and should not expect judges to retroactively approve the change.
Experienced Windsor Family Lawyers Helping You Navigate Mobility Rights and Relocation
Deciding to change a child’s residence is a complex legal journey where the “status quo” carries significant weight. As the courts have shown, unilateral moves or “self-help” remedies without proper notice can jeopardize your legal standing and, more importantly, the best interests of your children. Whether your situation involves a simple change of residence or a significant relocation, the legal requirements under the Children’s Law Reform Act are strict.
The team at Johnson Miller Family Lawyers understands that parents may have concerns about mobility rights and any change in a child’s residence. We can help you assess your options and ensure that any relocation meets the best interests of your child. To discuss your matter further, please complete our online questionnaire or contact the firm at 519.973.1500.
Moving With a Child: Relocation vs. Change of Residence in Ontario
Family cases in which a parent wants to move with a child and change their residence can be among the most challenging. These changes can significantly impact those with parenting time or decision-making responsibility, challenge existing parenting arrangements, and affect a child’s relationships. Each case will be fact-specific, but courts will look at the child’s best interests and consider their physical, emotional, and psychological safety, security, and well-being.
Mother Unilaterally Changes Child’s Residence
Versteegh v. Kerr was a case where the parties had been unmarried, and the father sought an order requiring the mother to return their two children to the town where they had been residing for 21 months following their separation. He alleged that the mother moved the children and failed to comply with the notice requirements set out in section 39 of the Children’s Law Reform Act (CLRA). In response, the mother claimed the move was in the children’s best interests and was beneficial to them. The father had arrived at the children’s school to take them for his week of parenting time. However, the mother arrived at the same time and refused to permit him to take the children. Around the same time, the mother moved the children from St. Thomas to Woodstock to live in her boyfriend’s residence. The mother did not tell the father that she was moving, why she was moving, or give him the address where the children would be residing. The father subsequently missed several weeks of parenting time. Additionally, the father’s driving time to retrieve the children more than doubled following the move.
Moves by individuals who have decision-making responsibility or parenting time with a child are addressed in two sections of the CLRA. Section 39.1 deals with moves that are a “change in residence,” while Section 39.3 addresses parental moves that are “relocations”. The judge explained that these are two distinct concepts. The term “change in residence” is not defined in the Act, although “relocation” is. A relocation is defined as a change in residence of a child or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with:
- another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child.
The CLRA sets out minimal obligations for a person undertaking a child’s change of residence. These include providing written notice to others who have decision-making responsibility or parenting time with the child. The notice must also indicate the date the change is to occur, as well as the new address and contact information. However, there are more stringent obligations for a child’s relocation. Notice must be provided in the prescribed form at least 60 days before the proposed relocation. Additionally, notice needs to include “a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised”.
Court Weighs Whether a Move is Likely to Have a Significant Impact
The judge had to determine whether the mother’s move with the children constituted a relocation. This required assessing whether the move was likely to have a significant impact on the children’s relationship with the father. In Hiebert v. Hiebert, the judge recognized that few cases have explored the differences between relocation and a change in residence.
In Alix v. Irwin, the mother moved with the parties’ five-year-old son to a community 1.5 hours from where they had resided. The father sought to have the child returned to his original community. The judge initially dismissed the father’s application, however, the decision was reversed on appeal. The Court explained that the analysis revolves around whether there has been a material change in circumstances. Citing Gordon v. Goertz, the Court explained the process requires considering whether the change: (a) alters “the child’s needs or the ability of the parents to meet those needs in a fundamental way, (b) “materially affects the child”, and (c) “was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order”. The Saskatchewan Court of Appeal concluded that the judge originally erred by only considering only the distance between the locations, and failed to examine the “logical and unavoidable implications for the child’s relationship with” the father that arose from the fact the child lived further away.
Courts do Not Focus on the Distance Involved in a Move
In D.T.D. v T.A.J., the Court looked at Alix and concluded that the distance arising from a move is not the controlling factor in deciding whether there is a “relocation”. Instead, it is necessary to examine the impact of the move on the child’s relationship with the non-moving parent. But in this instance, the judge focused on the mother’s move, which involved a short additional fifteen-minute commute, and decided it did not amount to a significant impact on the interim parenting arrangement. On appeal, the father argued that the judge was required to conduct a broader assessment than focusing solely on the additional commuting time. The Court agreed, noting that the focus must be on the best interests of the child, and that a contextual analysis is needed to determine whether a proposed move will have a “significant” impact on a child’s relationship with the non-moving parent. The Court proceeded to set out some relevant considerations, including:
- Whether and how the move would change the amount and frequency of parenting time for the non-moving parent.
- Whether and how the move would affect the degree of involvement of the non-moving parent in the child’s activities, schooling and so forth.
- Whether the moving parent is willing to bear the burden of any increase in the commuting time.
- How the distance or commuting time between the two residences would affect the quality of the child’s relationship with the non-moving parent; and
- Whether the non-moving parent has the ability – financial or otherwise – to commute to and from the child’s proposed new place of residence or an intermediate location.
In Versteegh, the evidence indicated that the proposed move would increase the father’s driving time to the child’s new residence by an additional 26 minutes. This would be necessary for him to exercise his parenting time. But Justice Price did not believe that by itself would significantly impact their relationship or make this a relocation case. However, additional analysis was required. In Hiebert, the Court confirmed that at “a child’s best interests are part and parcel of the more fundamental question of whether the proposed move is a relocation”. Consequently, the child’s best interests still needed to be weighed when reviewing the proposed change in residence. The judge proceeded to examine the factors for determining a child’s best interests set out in section 24 of the CLRA, along with additional factors relevant to deciding whether to authorize the relocation of a child set out in s. 39.4(3).
Evidence Must Indicate that the Status Quo is Not in the Child’s Best Interests
In deciding whether the move was in the child’s best interests, the judge considered the status quo that existed before the move. Previous cases have held that it is necessary to have compelling evidence that a child’s welfare would be in danger before disturbing the existing status quo. And that evidence must clearly demonstrate the status quo is not in the child’s best interests.
But in this instance, there was nothing in the evidence which “clearly and unequivocally” suggested that the children’s welfare would be in danger if the status quo was maintained, or that their best interests required an immediate change. The mother’s primary concern was the lack of a firm parenting schedule for the father, and she also expressed concern about risks to the children while they were under the father’s care. But Justice Price stated that those concerns could have been addressed through an application to the court and did not require removing the children from their school and moving to another town. Instead of pursuing the solutions available to her, the judge felt the real reason for the move was to allow her to reside with her boyfriend. Therefore, it was not possible to conclude that the move was in the children’s best interests. Instead, the judge echoed that parents cannot resort to self-help remedies and expect courts to approve of the changes. The mother was to return the children to their residence in the city of St. Thomas.
Judges Discourage Self-Help Parenting Measures
Parents who wish to change their place of residence must ensure that they follow the proper procedure before undertaking a move. Courts will consider the existing status quo and whether the proposed move is in a child’s best interests. Parents who relocate unilaterally may jeopardize their child’s interests and should not expect judges to retroactively approve the change.
Experienced Windsor Family Lawyers Helping You Navigate Mobility Rights and Relocation
Deciding to change a child’s residence is a complex legal journey where the “status quo” carries significant weight. As the courts have shown, unilateral moves or “self-help” remedies without proper notice can jeopardize your legal standing and, more importantly, the best interests of your children. Whether your situation involves a simple change of residence or a significant relocation, the legal requirements under the Children’s Law Reform Act are strict.
The team at Johnson Miller Family Lawyers understands that parents may have concerns about mobility rights and any change in a child’s residence. We can help you assess your options and ensure that any relocation meets the best interests of your child. To discuss your matter further, please complete our online questionnaire or contact the firm at 519.973.1500.
