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Parental Relocation of Children: A Study Of What Courts Decide

In 2017, Canada’s Department of Justice issued a report examining parental relocation cases decided between 2001 and 2011. The study reveals some interesting trends about how and when courts permit parents to relocate with their children. Interestingly, the study showed courts sometimes say one thing and do another, especially in the cases of unilateral parental relocation with their children.

The parent seeking permission to relocate is almost always the mother. There are few cases where fathers seek to relocate. Fathers are as successful as mothers in getting judicial permission to relocate.

Relocation Reasons

Custodial mothers most successfully gain judicial permission to move if they have sole physical custody or are victims of substantiated family violence. However, courts are much more likely to refuse permission to relocate if each parent has the children for at least 40 per cent of the time.

There were three main reasons for applying for permission to relocate with children:

  • A job transfer or economic opportunity for the applicant (33 per cent of cases)
  • To reside with a new spouse, common-law or intimate partner (29 per cent)
  • To have better family support to raise the child (19 per cent)

Other reasons for seeking relocation include requests to change the child’s custody or primary residence, or the primary caregiver was facing deportation or lacked immigration status in Canada.

Wishes Of The Child

Children do not always express their views about relocating as they don’t wish to upset either parent. Courts usually do not press children for their views as they do not want to force children to take sides.

Courts do attach significant weight to children’s opinions if they are clearly stated. The study reveals that the court followed the wishes of the children in 76 per cent of such cases. Courts can disregard children’s wishes if they are not in the child’s best interests.

International Relocations Versus National Or Provincial Relocations

Courts generally consider the distance between the custodial parent and the other parent, and how that affects the relationship between the left-behind parent and the child, when deciding whether to permit relocation. However, applicants seeking to relocate their children outside Canada were more successful in gaining permission to relocate (62 per cent) than those seeking to move within Canada (49 per cent) or the province (52 per cent).

This happens because many of these applicants are single mothers who are having trouble adjusting to life in Canada after separating from the father. They are moving back home for family support. In other cases, applicants for international relocation often have sounder reasons for moving. If the international applicant is moving because of a new intimate relationship, it is almost always because the applicant is getting married. Applicants for moves within Canada are more likely moving to be with a common-law partner or even to be with a new boyfriend with no cohabitation. Courts see these as less stable and are less likely to approve these relocation applications.

Unilateral Relocations

Courts usually condemn parents who relocate their children then seek permission. However, custodial mothers who moved first won judicial permission to relocate in 49 per cent of cases. In these situations, courts concluded that it was not in the children’s best interests to move again, even if it was back to their previous residence.

Parents seeking to relocate with their children should consult an experienced family lawyer before taking any action. This is a difficult area of family law. Parents should proceed carefully to have the best chance of winning judicial approval of their application to relocate with their children.

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