ISSUE 1: Notice of Relocation Requirement – Should a Parent Provide Notice of Relocation to the Other Parent?
Pursuant to the Divorce Act, a Notice of Relocation in a prescribed form is only required if a party wants to relocate. Please refer to Divorce Act, RSC 1985, c 3 (2nd Supp), S. 16.9(1). The Divorce Act defines relocation as follows :
Relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with
- (a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
- (b) a person who has contact with the child under a contact order; (déménagement important)
The first page of the instructions of the prescribed form under the Divorce Act provides clarification what relocation means. It says that “a relocation generally means the parenting time schedule for the child will no longer work because of the move.”
ISSUE 2: Relocation/Best Interests of the Children
Note on Legislative Amendments: New amendments to the Divorce Act came into force on March 1, 2021. The amended legislation partially reverses the decision Gordon v. Goertz. It does so insofar as it directs the court to consider the reasons for the move. Also notable is the addition of a new provision. It requires the court to consider any provision in an order or agreement restricting relocation when deciding whether to permit the relocation of the child. The amended legislation now specifies that in deciding the relocation issue, the court is not to consider whether the parent seeking to relocate would relocate without the child. This provision eliminates the “double bind” question. Divorce Act, RSC 1985, c 3 (2nd Supp), S. 16.92(1).
Summary of the Applicable Basic Principles
The pre-eminent authority on the issue of mobility and residency is the case of Gordon v Goertz. The relevant governing principles set out by the Supreme Court of Canada in Goertz were summarized by a trial judge and quoted by the Court of Appeal for Ontario in Bourke v Davis, 2021 ONCA 97, as follows:
[. . .]
- The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
- Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
- The focus is on the best interests of the child, not the interests and rights of the parents.
- More particularly the judge should consider, inter alia:
- (a) the existing custody arrangement and relationship between the child and the custodial parent;
- (b) the existing access arrangement and the relationship between the child and the access parent;
- (c) the desirability of maximizing contact between the child and both parents;
- (d) the views of the child;
- (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
- (f) disruption to the child of a change in custody;
- (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
[…]
Bourke v Davis, 2021 ONCA 97 Continued:
In considering interim mobility applications, Ontario courts frequently refer to and apply the following principles, which were first enunciated by Marshman J. in Plumley v. Plumley:
- A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
- There can be compelling circumstances which might dictate that the court should allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial, or the best interests of the children might dictate that they commence school at a new location.
- Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.
Still other cases have considered the factors in Gordon v. Goertz, above, and used a vague best interests analysis, concluding that the potential positive effects of the move on the child outweigh the potential negative effects: e.g., Greenfield v. Garside and Fair v. Rutherford-Fair.
The overriding test remains the best interests of the children.
Reasons for Relocation – Sale of Matrimonial Home
In Ramdass v. Ramdass, the mother was required to move after the sale of the matrimonial home. The mother’s move to her parents’ home was 55 kilometers from the matrimonial home. It reduced the mother’s commute and allowed for free childcare. The court granted the relocation on an interim basis.
In Bice v. Boettcher, 2015 CarswellOnt 13320, 2015 ONSC 5451 (Ont. S.C.J.), the house where the mother and the child resided was sold. As a result they did not have financial stability. Moving to Manitoba would allow for the kids’ financial stability. Also, status quo for the father maintained.
In Arthurs v. Cress[15], 2020 CarswellOnt 11573, 2020 ONSC 4892 (Ont. S.C.J.) a relocation provided the mother with an opportunity to own a home. It also allowed her to start new employment and have the support of extended family. The court granted a relocation two hours away.
Reasons For Relocation – Financial Stability/Making Up for Lack of Child Support
In Peterson v. Westera, the Court concluded that where a party’s relocation will provide financial stability and emotional support for the children, it would permit interim relocation.
In Tsuji v. Green, 2017 ONSC 3912, [2017] O.J. No. 3305, the court dismissed the father’s motion for the return of the parties’ child. The ten-year-old child did not return from Cobourg to Oshawa in Ontario. The court found that it was in the child’s best interests to remain in Cobourg. An order made in 2011 provided the parties with equal and shared custody of the child. The mother had primary residence. The father was in arrears of child support in the amount of $10,000.
The court found that there had been a material change in circumstances since the 2011. The mother and her new partner had a young son and were expecting a daughter. After an extensive search, they found that the best and most affordable accommodations in Cobourg, Ontario. They purchased a larger home there. The mother gave the father advance notice of the move.
The court found that if the child was required to return to Oshawa, this would separate the mother’s family. The parties’ child would have to live apart from the other members of his mother’s family. It included his baby brother, step-father and soon-to-be baby sister. The mother’s family would suffer financially, and the child would no longer be entitled to benefits from the step-father. The court found that the distance between Oshawa and Cobourg of about 52 kilometers was not so great. However, it would interfere with the father’s ability to exercise access.
Disruption to the Children if Not Allowed to Relocate/Preserving Status Quo/Stability
In McDonald v. McDonald, the Court allowed the move. It stated that here was a genuine issue for trial. The court weighed the importance of the child staying with his mother as against the disruption to the relationship with the father. The court concluded it would be contrary to the child’s best interests not to allow the move with the mother.
Moubarak v. Blakely[19], 2019 CarswellOnt 24290, 2019 ONSC 5806 (Ont. S.C.J.) stands for a long standing proposition that if there is strong evidence that a parent’s position would prevail at trial, that parent’s interim relocation teh court will allow it.
The Court of Appeal in Ligate v. Richardson, allowed the mother to relocate with the child. The mother was in a new relationship. She and her partner believed that a home in the new city could better meet their family’s needs and enhance the child’s quality of life. The appellate court held that there was no suggestion that the reason for the move reflected adversely on the mother’s parenting ability. The mother believed the move would enhance the quality of the child’s life.
It could not be said that the move was designed to frustrate the father’s access. The mother appreciated the importance of the child’s relationship with her father and was willing to make accommodations to reinforce the relationship and ensure the move would impinge as little as possible on his access. This included sharing the task of driving, allowing the father reasonable access to the child in her new Cambridge home and increasing holiday access, among other things.