Canadian parents wanting to relocate their children after a separation may be surprised to learn they need Court approval if the other parent does not consent. This is so whether the move is from one province to another or only to another place in the same province.
A parent who is summoned back to answer to the Court for a unilateral decision to move a child away faces two challenges. First, the standard for justifying such a substantial interference with the other parent’s access to the children is extremely high. Second, meeting that threshold at an interim stage can be compromised by several factors, particularly the deficiencies of affidavit evidence. This article will briefly look at those two challenges and summarize what the Court looks for when deciding whether to approve an interim move of children.
The first obstacle is that the threshold for proving a move is in the children’s best interest is high – so high, in fact, that there is a presumption that the children should not be moved without a trial. Because of this presumption, the relocating parent must make a clear case to justify an interim move. This is often complicated by the other parent’s objections to the move, including claims that the move is surreptitious and/or motivated by the relocating parent’s best interest rather than the child’s. The first task is often changing the perception that an injustice has been done and must be repaired. Proving otherwise is particularly challenging where there are emails, text messages or other evidence showing the opposing parent communicated a clear objection to the relocation. Without clear communication of consent, the burden is on a parent hoping to relocate to seek the Court’s approval for the move. Where consent does not exist and/or there is evidence of objection, the relocating parent can expect allegations that the move was inherently unjustified.
The second obstacle faced by a relocating parent is that a Court application at this stage is based on affidavit evidence alone; litigants do not have a chance to give oral testimony and the Courts cannot judge credibility based on testing that testimony. Litigants are often concerned about how the Courts will know who is telling the truth. The Courts share that concern and it is one reason for maintaining the status quo.
When faced with conflicting evidence, Courts usually respect this presumption. This means maintaining the residence that the children had prior to relocation until an oral hearing. Judges have specifically stated they will not support a culture of “move first, ask later”. They have acknowledged that a move “changes the familial landscape,” often in ways that cannot be anticipated or proven at this early stage of proceedings. In addition, Courts have sent a strong message they will not approve a move simply because it has happened or because returning to the status quo will involve expense and inconvenience to the relocating parent. The end result often forces the primary caregiver to return to the jurisdiction to resume parenting in that location or risk a forfeiture of the primary caregiver role.
Because of all these factors, it is unwise to assume it is better to ask for forgiveness than permission when relocating children in Canada. If you have a compelling reason to relocate your children but are faced with resistance from their second parent, you will want to assess the likelihood of obtaining the Court’s approval. This involves considering the following factors set out in one of the leading cases on the subject, Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 49:
- the existing custody arrangement and relationship between the child and the custodial parent;
- the existing access arrangement and the relationship between the child and the access parent;
- the desirability of maximizing contact between the child and both parents;
- the views of the child;
- the custodial parent’s reason for moving, but only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
- disruption to the child of a change in custody;
- disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
These considerations require the Court to embark on a balancing of interests, always attempting to link each of them back to the interest of the child and deciding how that overarching consideration fits into each perspective. All of these factors have been considered in the case law, with additional considerations entering into each. In the end, the factors come together to create a balancing test requiring the Court to weigh the child’s interest in remaining with the parent to whose custody it has become accustomed in the new location against maintaining full contact with the child’s access parent, the extended family and the community.
Even a brief review of these factors highlights the problems Courts face when asked to approve the move of children. The balancing of interests requires parties to advance evidence promoting the virtues of their own parenting skills and emphasizing the other parent’s deficiencies. It requires a relocating party to elevate his/her parenting role to that of primary importance while minimizing the role of the access parent. These requirements almost always create a divergence of opinions about what is in the child’s best interest and require a thorough test of the evidence and the parties’ positions to conclude the true interest behind the proposed move. In such cases, the Court will usually resort to the presumption in favour of preserving the status quo until such a test can be carried out in an oral hearing, even where the move has already been made and even when undoing it is inconvenient to the parent who has moved.