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  • Common-Law Splitups

    Hi my ex and I split up back in February and did not go through lawyers. We were a common law couple for almost 5 years and have one child together who is now 4 and started his schoolong just this year.

    Now we had everything agreed and planned we followed the guidlines for childsupport payments on my previous years income I had no probloems with this.

    The problem I have now is I just recieved an email from her stating that she may be moving away towards Kitchener area (Im in Ottawa) and taking our son with her. I have a problem with this obviously as i wont see him and it will disrupt his schooling.

    What I would like to know is how much of a say do I have in this and what are my rights?

  • #2
    Mobility Rights can swing either way. If she has custody now, I think this would be considered a material change of circumstances. The best interest of her might not be the best interest of the child. If you do have a problem with it and are willing to parent the child fulltime contest it. If your not willing to parent the children fulltime and she has a good reason for moving such as employment or schooling she may get the courts blessing. Don't forget about the travel costs. Gas is expensive nowadays and could add thousands to your budget every year to maintain your relationship with your child.

    There is lots of case law in regards to mobility rights. See this highly used pro-mobility Supreme Court of Canada case at canlaw Gordon vs. Goertz

    There is case law out there that disallowed the move of the child. You can't stop her driectly from moving. She has that right in the canadian charter of rights and freedoms.

    Consult a lawyer such as Jeff to know all your rights and get his opinion and what action to take.


    • #3
      Thats another thing. If she takes him that far. I have no way of seeing him as I would not be able to afford the fuel. I dont see how she could be allowed to do such a thing. I thank you for your help.


      • #4
        She needs your permission ftom you to take him. This is considered a material change.
        What is best for her may not be best for the child. Also if the move was allowed you could ask that she provide all the access travel costs and or half of same. This is an issue in itself. I would consult with Jeff. The reason for her move is a big factor. If her reason to move is because her boyfriend has new mployment, I do not think the courts would bless that and may order the child to remain in the current city. Also, from your other post, it is apparent that she is trying to provoke you as I said. Smile and be nice. Document everything.


        • #5
          Ok just a little update. I have called lindsay and left a message on her machine today I guess i will hear back monday. I have a question now though. I start training for a new job on monday, if I dont show I dont get the job obiously. Which I will need to pay for a lawyer.

          Now I got a pm today from my ex telling me she is moving on monday because her boyfreind got a job quite a distance away. She also tells me that my son is not going to be seeing me this next weekend because he said he didnt want to. She said they have talked it over with him and he is ok with not seeing me and moving away with them. I find this hard to believe after the lst time I had dropped him off he did not want to leave the car.

          My question is now, should I go to my training monday or should I stay home and get in contact with Jeff? Also is it considered kidnapping if she does take off with my child after I have told her I do not apporve of this and would like to see him on my weekend?


          • #6

            Just an opinion

            How old is your child again? I perceive the child to be younger. The child is is no position to make that decision of where it wants to live. No weight would be given to a very young childs opinion. What you have received is a version of the mother's opinion. This would also be considered heresay. Who knows what they told your child if your child did indeed say that. It does appear on what you have said that she is not very child centered.

            I would think you have a material change of circumstances on your hands. As you mentioned, Your x's boyfriend has a new job, keyword in that is """Boyfriend""". Is their a current custody order in place or is it defacto custody.
            How much notice has she given you? Does she currently rent?? Generally speaking when a person moves, I believe they have to give 60 days notice to their landlord. Why didn't they give you 60 days notice? Where are they going to live in Kitchener. At a moments notice they retained a proper suitable place to live with a child. Sounds like they have been planning this move for awhile.
            One question to ask is How stable is she? Sounds like this move is spontanious. Another factor to look at is if the move was allowed per say, not only will your child and your relationship may be stressed, but also that of extended family etc. What about your child's friendships? Is your child in school? Will a move not be very disruptive to your child. The move may jepordize his school year etc.

            Everything will be based on facts. If she moves and takes your child and no arrangements are made for continuation of a realtionship with you ie: as an example alternate access etc and also she does not have your permission, this will look very bad on her. If it was me, I would call your lawyer, try to arrange a late day or early evening apointment ASAP!!!!!!. I think your only option to stop her would have to do an emergency motion ex parti without serving her. She would not be required to attend due to the nature of the emergency. The judge would only hear your evidence. These motions are risky sometimes. The court would hear the motion in your current location. Court hearings are generally held where the child resides. You don't want to fight this battle in Kitchener. The court may hear your emergency motion they may issue interim interim orders preventing the move and generally have you serve her the documents and give her an opportunity to respond and bring the matter back with her evidence within 14 days.

            I think you have a good chance to stay the child from moving until a proper hearing is held. What is the exact status of their realtionship. Are they common law? One thing to look at is they are not married. See the difference. Per say, what if they break up in a year or two? Will she move again? The best interest of her or best interest of the boyfriend is not necesarily the best interest of the child. I think you have a very good chance of preventing the move of your child. You can't stop her from moving, she has that right protected in the constitution in canadian charter of rights and freedoms but you may be able to stop your child from moving.


            • #7
              Ok my child is four he started school just this year he is loving every minute of it. I asked her what his hours were and if he was afternoon or morning she refused to tell me. They are not common law as we had only broken up this past february. But now it seems there is a hint of them being engaged. I dont know the status to this as she does not communicate at all. I ask her a question and I will either get a PM like the one I posted in the venting thread, or she wont tell me anything alltogether. This is making it very difficult for me to know whats happening in my sons life, I just have to wait till I see him and hear about it from him.


              • #8
                RowanDu, don’t give up your job - that’s not what’s best for you or your son! However, you do need to act very quickly in this situation - if you waited a month or two, there would be an assumption that you agreed to the move. I can meet you after business hours, and I’m sure there are other lawyers that can too. You can arrange an appointment via email or by phone during your lunch break.
                Ottawa Divorce


                • #9

                  I am not sure what the custody situation is of your child ie: defacto, sole, or joint.

                  By law as your child's parent, you have every right to make inquiries about your child health and welfare. Your ex cannot keep this information from you. Your right to this information is identical to hers.


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