The answer is more complicated than a yes or a no but a custodial parent can’t just pack up and move the child when or where he or she wants to.
In fact, the custodial parent wanting to move the child often causes a lot of issues between the custodial and the other parent.
However, the courts and provincial/territorial family law legislation have set down a set of principles through case law and legislation to follow when the custodial parents plans to move the child.
Best interests of the child
In 1996, the Supreme Court of Canada released its decision in the landmark case Gordon v. Goertz. The court said the decision to move the child has to be not in the best interest of the parent but the child.
Before the 1996 decision, the law saw a presumptive right of a custodial parent to relocate the child. The law now looks at each case on an individual basis with a focus on the best interests of the child without looking what would favour either parent.
As a result, these are the factors that are to be taken into consideration when deciding whether to vary a custody and access arrangement:
- 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, 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.
Not only are the above factors to be taken into consideration but a custody or access order can only be varied in a narrow set of circumstances and there must have been a material change in the circumstances affecting the child.
The judge must be convinced of three things in order to allow the variance, which would then allow a custodial parent to move the child:
- There must be a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child;
- The change must materially (significantly) affect the child, and;
- The change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
Gordon v. Goertz is the leading case on parental mobility rights in Canada and sets the test of which factors to consider when a custodial parent wants to move the child.
However, there is also specific provincial/territorial legislation that often sets up extra rules to follow in cases where a custodial parent wants to move with the child.
For example, in British Columbia the law requires that if a custodial parent wishes to move with his or her child, the parent must give notice to the other parent or person who has contact with the child prior to the move.
This notice requirement likely also applies to other provinces/territories.
If the other parent objects, they have to try to work it out on their own terms and failing that, then they can take the case to court where the custodial parent has to prove she or he is acting in good faith.
Each province and territory has a family law act and likely has additional rules and procedures on how to deal with a custodial parent wanting to move a child. The legislation of your region should be consulted.
Custody and access issues are complex. If you are in a situation where you are the custodial parent wanting to move a child or you are the access parent who doesn’t want the child moved, you should consult a lawyer.
A Study of Post-Separation/Divorce Parental Relocation Government of Canada
Can you move — With or without your child?