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Old 02-28-2017, 12:52 PM
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Originally Posted by ifeelold View Post
Sorry I realize there are some threads on this topic but I don't want to hijack them with my own question(s).
Click on my name then read all the main thread posts I have made. I specifically post a significant amount of case law and information regarding "mobility" matters.

What you are discussing is a "mobility" matter.

You need to do a lot of reading:

Start with this google search:*

Originally Posted by ifeelold View Post
Recently been approached by my ex that they want to move approximately 5hrs away with the kids.
This is what is called a "mobility matter". These are the most complex matters in family law.

To quote one very wise judge about mobility matters:

[1] There is no other area of family law litigation in which the idea of “winner” and “loser” is less applicable than that of mobility cases. It is also true, that even with the very best parents, it is the area where “win-win” solutions can rarely, if ever, be fashioned. Parents involved in a mobility dispute often have to resort to the courts, because even with the best of intentions, and with both parties doing their best to put their child’s interest before their own, they cannot find a solution to the desire of one parent to move with the child, and the other parent vehemently resisting that move.

Source: Van Rassel v. Van Rassel, 2008 CanLII 37217 (ON SC), par. 1, CanLII - 2008 CanLII 37217 (ON SC)
Originally Posted by ifeelold View Post
Of course, I oppose this as I have a steady job where I am and have no issue staying where I am now.
How long have the children resided in their current "habitual residential location / jurisdiction"? How old are the children? What is your access schedule with the children?

These are all VERY important questions.

You should vehemently resist the move. In fact, I would recommend that you retain a lawyer and have the lawyer send a very strong letter to the other parent to this very fact. You should explicitly state that if the children are removed from their habitual residential location / jurisdiction without your consent or an order of the court you will move immediately with an emergency motion for their immediate return.

Originally Posted by ifeelold View Post
I also personally believe that moving them to where they are suggesting is actually not what's best for them long term.
Again, this is based on a lot of factors and not your personal opinion. Sorry to say. It is based on the time the children have resided in their current habitual residential location/jurisdiction, their access to both parents and their best interests.

The main case law that drives this determination is Gordon v. Goertz which states that the move must be in the children's best interests.

Although the data in this report is old it may provide you more insight into mobility matters: Analysis of Reported Canadian Cases - A Study of Post-Separation/Divorce Parental Relocation

Statistically speaking the other parent has roughly a 50% chance of success if you use the information in the above-provided report. But, the real differentiator is how you argue your matter.

Originally Posted by ifeelold View Post
It is a place where unemployment is quite high. There are no good post secondary schools there. There is just no opportunity there.
Again, it isn't about the overall opportunity or your perception of it. It is real evidence that matters.

Does the other parent have family there to help support them?
Does the other parent have a real job opportunity there?
Are you an equal access parent or an every-other-weekend parent?
Do the children participate in extracurriculars?
Do the children have special needs?
etc.. ???

Originally Posted by ifeelold View Post
There is a clause in our court order stating that the children shall not be moved from the region which we are located now.
In reality, that clause forces the other parent to bring the matter to court for determination prior to moving and to give you proper notice for the court proceedings. It doesn't "stop" a parent per-say from moving. What stops a parent is a court order that doesn't permit it.

For example something like this:

Again, don't think that what I have reviewed and provided case law will happen in your specific case. I am providing this as it is a recent case and outlines how a judge considers a parent's move. The moving parent in this matter did EVERYTHING wrong and the staying parent did everything (for the most part) correctly. The key thing to focus on is how you litigate the matter.

Retain a really good lawyer that has case law under their belt that demonstrates that they have successfully argued against a move.

Originally Posted by ifeelold View Post
Apparently my ex is preparing paperwork in order to bring this in front of a judge.
The other parent needs to bring an Application and demonstrate a material change. Their desire alone to move is not "material". They have to demonstrate that they have employment opportunity and how it is in the children's best interests. They will have to meet the criteria set forth in Gortez.

If what I am writing doesn't make ANY SENSE to you and you then you need to hire a good lawyer and now.

Originally Posted by ifeelold View Post
Is there something I could or should be doing myself?
Retaining a very very very very good and qualified lawyer who has SIGNIFICANT experience with mobility matters.

Originally Posted by ifeelold View Post
I don't have shared custody but I do have joint custody.
Joint custody (equal decision making regarding the children) is "shared custodial responsibility". Don't mix up the silly term "shared parenting" which is a term used in the Federal Child Support Guidelines for calculating off-set child support when there is "equal access".

I am going to assume you do not have "equal access" to the children. That being they don't spend 50% of their time with you. That makes your argument harder but, it doesn't mean that a judge will automagically move the children.

Joint custody means a lot and is in your favour. Parents that have "no custody" whereby the other parent is the "sole custodial parent" have a harder time with Mobility Matters. The weight given is towards "sole custodial" parents generally.

Originally Posted by ifeelold View Post
I already told my ex to just stay where they are now instead of moving again (this would be 3rd time now). If this goes to a judge I will, of course, be suggesting the children stay here and that my ex is free to move as they wish.
That is a general idea. The parent is free to move but, the children are not. There is joint responsibility for the custodial decisions already in your matter and a clause that forces the matter into court. Where children reside should be jointly made. It impacts all the decisions regarding the children - their doctor, their schooling, their extracurricular activities, etc...

Most important is their access to you. If they have regular and consistent access to you and they benefit from this access then it even gets harder (not impossible) for the other parent to move the children's habitual residential location.

Other things to consider if your position is weak in blocking a move:

1. Increased access to the children. For example, they spend 6 weeks with you every summer. 3 months of July and 3 months of August. They spend 1 week each of those months with the other parent. Or some variation of this.

2. The children spend every long weekend and holiday with you. Or some variation of this.

3. The other parent reduce child support to cover the cost of the travel to accommodate the distance the chidlren will have to travel for access with you.

Ultimately, the best way to put an end to any mobility matters is to have joint custody and equal 50-50 access of the children up front. To anyone reading this thread if you do not have 50-50 access of your children then you are going to have a significantly more difficulty blocking the moving of the children. I have not seen a judge disrupt a 50-50 access arrangement in recent years.

Parents need to think about this stuff up-front when they agree to the every-other-weekend access schedule. No one should ever agree to it. Even if it means you need to find new employment. Children should always come before career in a family law matter.

Good Luck!
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