July 15, 2013

Child Access And Moving Out Of Province

When a family is involved in a divorce and there are children involved, it can be not only complicated during the divorce process itself, but also Child Access issues that can develop in the future.

A classic example involves an ex-spouse, who has custody of the children, and needs to move out of province for career reasons. Effectively, this would result in the children of that relationship moving out of province and this jeopardizes the Child Access agreement made at the time of the divorce.

The Legal Process Is Not Consistent On Child Custody

It is also not uncommon for a judge to rule in favor of one parent (permission to leave the province with the children), while an appeal can result in the complete opposite in decision.

Unfortunately, the Supreme Court of Canada in its 1996 decision in Gordon v Goertz states that the request for relocation by a parent must be individualized for the best interests of the children involved. The case, while a referral standard, is vague and short on firm legal guidance.

There Are Patterns To Custody Requests

Nicholas Bala and Andrea Wheeler recently wrote an article in the Canadian Family Law Quarterly titled “Canadian Relocation Cases: Heading Towards Guidelines” ([2012] 30 CFLQ 271).

Article Link

Their findings outlined the following patterns in judiciary decisions relating to parental requests for moving children out of province.

- Success rates for mothers (51%) and fathers (55%) are similar.

- Reasons matter. The three most frequent reasons are:

  1. economic, usually for a job transfer or a better employment opportunity – 52% of applications succeed.
  2. to establish a new relationship – 48% succeed.
  3. to have better family support, particularly for a custodial parent who wants to move “back home” – 53% succeed.

- Proven spousal violence, particularly when children witness it or are directly affected and the judge believes the move will protect them – 81% succeed.

- Distance — travel time, distance, available resources and the moving parent’s willingness to maintain contact are all important. Some provinces are more likely to permit moves (P.E.I. 70%) than others (Newfoundland 38%). Interestingly, international moves are the most successful overall, with a 62% success rate.

- The child’s wishes – where a child is mature enough to have a clear view and is willing to state a preference:

  1. 76% succeeded when the child favoured the move,
  2. 24% succeeded when the child opposed the move.

Contact Our Divorce Lawyers In Edmonton

If you are considering a move out of province with the children you share with a divorced spouse, it can be complicated and require legal advice. Call our divorce lawyers in Edmonton today and let us help you look at your options and build a strategy that is in the best interests of your children.