Mobility Law - How does it apply to inter-community moves?

[DeWalt]

I`ve recently been searching this forum for mobility cases, and notice that most mobility cases relate to changing provinces or countries, or typically large distances. I`m hoping for advice on my mobility concerns between communities.
My EX and I separated in late 2014, and finalized our divorce in early 2016. We have a SA, and one addendum to cover holidays and items not initially covered. My EX would not agree to a relocation clause unless it allowed for a 150km radius from the matrimonial home. We have joint custody of our children, S7 and S9 on a 50/50 ratio, with our children transitioning every weekend between houses.

Her current rental house is 10kms east from the matrimonial home. We originally agreed to sell the marital home, but the market was slow, and tensions high, so we agreed that I would buy her out so she could rent this house in a catchment basin for a middle school with a good reputation for the children. Financially, this is difficult for me, but I decided our children needed stability, and their needs come first. Costs have been cut and toys sold to provide stability for my children.
Six months ago, she informed me verbally of her lack of desire to continue residing in her community, and we agreed on a new education plan for our children to attend middle school in my community. This week, my EX verbally informed me that she and her new partner have purchased a house 60km (40 mins) south in a small town, on a major highway with no immediate neighbors. She plans to move there while maintaining 50% physical custody of our grade school aged children. I was not informed of the specific address or timeline to move, nor was I consulted on the location. She has admitted in writing that she is moving to pursue her new relationship and I have no reservations about the relationship as we have both equally moved on.

We are both active in the lives of our boys. My EX is a good mother and I consider myself a good father to my children. We both have great stable jobs, and provide for our children.

Her plan is to drive the boys back and forth, to / from this new location on her custody weeks. They will remain in daycare before school and continue to attend the same school in my community. She believes her relocation will have no negative impact on their lives since she is operating on the fact that the delta in time between her current commute, and her planned commute is only 28 minutes (50kms). She is offering to complete all transport to not affect my time with our children.

I have explained in writing that I do not agree with this move as I do not believe it is in the best interests of our children for multiple reasons:
-The new 60km distance, 40 min travel time is 2X daily that increases with rush hour, weather conditions and construction; This becomes 200km daily roundtrip for my EX (home-work) so there is an increased risk of falling asleep, accidents, etc.
-The impact on sleep patterns to accommodate the increased travel time (less sleep generally means cranky children at home and school)
-Removal from social circles and friends
-Increased distance from extended family on both sides
-Increased distance to family doctor and dentists
-Effect on extracurricular activities (hockey, swimming, etc). Some nights, they wouldn't be home until 2030 or later.

Not communicated, but important : Both S7 and S9 have openly, and repeatedly, stated that they do not want to move.

With this change, in her custody, our children's new schedule would be similar to this:
Wake -515am, leave house at 0600, arrive daycare 0645, school 0900-1600, arrive home 1700, eat 1745, homework 1800, bed by 1900, and this now means at best 10hours of sleep per night for young children. Hectic to say the least.
I've also considered long term effects:
What happens when they join a club, play sports, have field trips with late returns or want to go to a friend`s house after school? How do they get back to this new house?
What happens later when they have part time jobs, but live 60kms away?

My EX disagrees with all my concerns, and refuses to explain how the move is in the best interests of our children. My requests to consider alternate custody agreements were denied.

My questions:
1-Due to joint custody, my EX should not have made a unilateral decision to move with our children. Am I within my rights to fight to protect our children's best interests, and do I have a legal leg to stand on per se?
2-Is my EX is required to notify me in writing of this move?
3-Is relocation for purposes of a new relationship is considered a material change, and unless an agreement is reached, would require a hearing?
4-Will My EX, in court, need to prove that this move is in the best interests of our children in order to be approved to relocate with the children, even in a 50/50 joint custody situation (Gordon vs Goertz);?
5-If this needs to go in front of a judge, can I ask for costs?

Thoughts?

[blinkandimgone]

A 45 minute drive to school isn't that big of a deal, in my opinion. It's actually the average time spent one-way on a school bus for rural kids to get to school.

Your agreement says 150km, she moved 60kms.

I have explained in writing that I do not agree with this move as I do not believe it is in the best interests of our children for multiple reasons:

-The new 60km distance, 40 min travel time is 2X daily that increases with rush hour, weather conditions and construction; This becomes 200km daily roundtrip for my EX (home-work) so there is an increased risk of falling asleep, accidents, etc.

60km X2 = 120km not 200km. Travel distance does not increase due to heavy traffic etc.

-The impact on sleep patterns to accommodate the increased travel time (less sleep generally means cranky children at home and school)

This is something you would have to prove is actually happening, not something that could potentially happen. Your kids are coming into an age where they will try to stay up all night just because so this point really becomes moot.

-Removal from social circles and friends

Yes, this sucks, but like in any transition - such as the pending transition to middle school - they will find and form new social circles and friends. You would be hard pressed to poo-poo one transitional change as too difficult for them but not the other.

-Increased distance from extended family on both sides

Many families live in different cities, provinces or even countries. You'd be hard pressed to sell this as a valid reason for changing your agreement.

-Increased distance to family doctor and dentists

Doctor and Dentist viits are fairly infrequent, so same as above.

-Effect on extracurricular activities (hockey, swimming, etc). Some nights, they wouldn't be home until 2030 or later.

If they are booked into regularly scheduled activities, the schedule wouldn't change and if mom is prepared to do the driving and isn't asking/expecting/demanding you do it, it really isn't that relevant.

This isn't a huge move, and although I do support parents remaining close to the kids and school as much as possible, you agreed to this in your separation agreement. Now you want to go back on it. Assuming you had independent legal advice at the time, you'd be hard pressed to convince a judge to undo it now because you've simply changed your mind.

ETA: "The law of parental mobility rights in Ontario currently states that a parent can move with their child if the move will not affect the other parent’s access. If the relocation would affect access, the parent needs the agreement of the other parent or a court order that varies such access. "

https://www.simpledivorce.ca/parenta...ights-ontario/

None of what you have mentioned is even remotely related to affecting your access with the children.

[DeWalt]

Allow me to clarify some points you've made.

A 45 minute drive to school isn't that big of a deal, in my opinion. It's actually the average time spent one-way on a school bus for rural kids to get to school.

Do you have a source to back up this fact? The new drive of 40mins, or 60kms is only to morning daycare. S9 starts middle school in 1 year, and this will add a further 30mins on a bus. I'm not certain I understand how this in their best interests when they currently have a 15km trip on her week, and 0.5km trip on mine.

Your agreement says 150km, she moved 60kms.

My agreement does not have a relocation clause. I asked for one, and requested 50kms from city hall. She would not agree to add a relocation clause unless it stated 150kms from city hall. Since we could not agree, and she put in writing that she has no plans to move (Nov 2015), we jointly decided to not include a relocation clause at the time the SA was signed.

60km X2 = 120km not 200km. Travel distance does not increase due to heavy traffic etc.

Yes, 60X2=120km to drop my children off at daycare. Then my EX would proceed a further 40X2=80km to her work. 120km+80km=200km. One would assume driving 200kms every day would increase odds of driver fatigue.
Although I believe 60km is too far, a 40min commute can easily decrease in time if speeding, or increase due to weather, traffic or construction. What doesn't change, regardless of circumstance, is the 60kmX2 that our children will have to drive daily.

[rockscan]

I should also add that while the kids dont like it now, that could change. You shouldnt be allowing them so much weight in a simple decision. For the small percentage of time your kids are in activities Im sure your ex will make a reasonable effort to get them there. She is their parent too. When theyre old enough they will have a few more choices.

Its ridiculous for you to say no when shes willing to take on all the extra duties related to this move.

[blinkandimgone]

Allow me to clarify some points you've made.



Do you have a source to back up this fact?

Sure: go to the transportation board and look up the bus routes.


The new drive of 40mins, or 60kms is only to morning daycare. S9 starts middle school in 1 year, and this will add a further 30mins on a bus.

A further 30 minutes from what?


I'm not certain I understand how this in their best interests when they currently have a 15km trip on her week, and 0.5km trip on mine.

How she chooses to spend her time with them is up to her, even if you choose to spend yours with them differently.


My agreement does not have a relocation clause. I asked for one, and requested 50kms from city hall. She would not agree to add a relocation clause unless it stated 150kms from city hall. Since we could not agree, and she put in writing that she has no plans to move (Nov 2015), we jointly decided to not include a relocation clause at the time the SA was signed.

This was unclear in your post.


Then my EX would proceed a further 40X2=80km to her work.

This part is none of your business. Would you attempt to strip her of all parenting if she drove a delivery truck for a living? Or a personal support worker transporting handicapped people? Or her job was very physical that it may tire her over the course of the day? This is honestly 100% bullshit to pad your argument and if you took it to court her lawyer would put a quick end to that line of thinking.

120km+80km=200km. One would assume driving 200kms every day would increase odds of driver fatigue.
Although I believe 60km is too far, a 40min commute can easily decrease in time if speeding, or increase due to weather, traffic or construction. What doesn't change, regardless of circumstance, is the 60kmX2 that our children will have to drive daily.

You say the kids don't want to and I'm sure that's true. Kids often don't take well to the idea of moving. And sometimes they don't want to go to school or do their chores or eat vegetables. Kids are like that, which is why as parents it is irresponsible to allow them to make adult decisions. If your finances change, or had you you been unable to keep the family home, or you lost your job and had to move you wouldn't be allowing the kids to make the decision not to move. You would simply explain it to them and help them embrace the new opportunities. Your kids are in daycare still, they don't have the capacity to understand the adult decisions being made so leave them out of it.

The reality is it has zero affect on your time with them and you don't have a mobility clause. She's not asking anything of you.

So far this seems simply an attempt to prevent her from moving on with her new partner.

[blinkandimgone]

With this change, in her custody, our children's new schedule would be similar to this:
Wake -515am, leave house at 0600, arrive daycare 0645, school 0900-1600, arrive home 1700, eat 1745, homework 1800, bed by 1900, and this now means at best 10hours of sleep per night for young children. Hectic to say the least.

Just re-reading your initial post and noticed this and...what? I don't know any 7 year olds, much less 9 year olds that go to bed at 7:00? And ten hours is TONNES of sleep for kids.

[Berner_Faith]

Sorry to say OP I tend to agree with what posters are saying. Many kids have 30 min bus rides daily, many kids commute to school. It isn't effecting your parenting time, she is doing the driving and your "reasons" for not allowing the move are very weak. Have you actually done any research on this topic? Or are you expecting people here to do that for you? If you did your own research or even did a search on this forum you would find many threads on this topic


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[DeWalt]

Wow. So many judgements against my character, yet none of you know any of the story. It makes me wonder if any of you have children. Lots of comparisons about how others have it worse. I agree that many do, but that doesn't mean that should be the new accepted norm.
Regarding the comment that I don't support my EX in her relationship, that is completely false. In fact, I've sent it in writing more than once that I support the relationship. I generally even like the guy - my children report that he treats them well, and that's almost all that matters.

What I should have done, is just post a two liner post that my Ex has joint custody, but made a unilateral decision to move 60kms away without consulting me. What do I do now? Unfortunately, I tried to provide as much info as I could, and that appears to have confused the majority of you. My mistake.

I think I now know why there are so little mobility related posts on here because they just result in a huge flame session.
All I asked for was some advice about joint custody, mobility and processes.
Have I done research? Of course.
Here are a bunch of links to cases that I've set aside from the past week that I believe has some sort of relevancy or commonality to my issue:

http://www.familylaw.lss.bc.ca/resources/fact_sheets/movingWithChildrenIfExDoesntAgree.php

http://www.justice.gc.ca/eng/fl-df/parent/mp-fdp/p7.html

http://www.cleo.on.ca/en/publications/custodyaccess#full

http://familyllb.com/2013/12/09/can-i-move-away-with-my-kid-you-may-have-to-jump-some-legal-hurdles-first/

http://www.ottawadivorce.com/move-away.htm

http://www.canlii.org/en/on/oncj/doc/2016/2016oncj201/2016oncj201.html

http://www.lawnow.org/relocation-advisory-guidelines-an-idea-whose-time-has-come/

http://www.ottawadivorce.com/forum/f3/moving-child-case-law-habitual-residence-14033/

http://www.ottawadivorce.com/forum/f3/ex-trying-move-72km-away-my-son-so-begins-12245/

https://www.canlii.org/en/on/onsc/doc/2015/2015onsc5129/2015onsc5129.html

http://www.ottawadivorce.com/forum/f4/relocation-within-100kms-17683/

Now, I didn't post these so everyone could look at them all and pull every sliver of information out that may or may not apply to my mobility concerns. I'm just tired of feeling like a villain by keyboard warriors because I care and want to protect my children.

Have I looked into obtaining legal advice? Absolutely. I won't post their websites, but I've pulled information from their Family Law section to try to determine processes and relevancy, which I believe there is. Of course, I won't know for certain until I sit in front of them and listen.

[Rioe]

I'm going to agree with the original poster, though I'm glad to see people poking holes in his arguments to strengthen or eliminate them. Frankly, it's in the children's best interests to have a mother who puts their stability above her new relationship. Too bad these children don't have that. I wish I had better advice to give to deal with the mother they do have.

All I can suggest is that you make sure you modify your agreement to indicate that she will not move further away than she already is. And pay attention to how the children deal with the distance. If it's proving to be a burden on them, then you can take action. So document any issues that arise, such as the children missing activities, the mother refusing access because she's too tired to drive, etc.

[Links17]

Why is she moving so far away?

If I were you, I would tell her if she moves, you will file a motion for sole custody. Then see how she reacts.

If she goes, file the motion. By time it gets to court you will have seen how it is affecting or NOT the kids and then you can choose to settle or not on that basis and/or use that as proof in trial.

[blinkandimgone]

Wow. So many judgements against my character, yet none of you know any of the story. It makes me wonder if any of you have children. Lots of comparisons about how others have it worse. I agree that many do, but that doesn't mean that should be the new accepted norm.
Regarding the comment that I don't support my EX in her relationship, that is completely false. In fact, I've sent it in writing more than once that I support the relationship. I generally even like the guy - my children report that he treats them well, and that's almost all that matters.

What I should have done, is just post a two liner post that my Ex has joint custody, but made a unilateral decision to move 60kms away without consulting me. What do I do now? Unfortunately, I tried to provide as much info as I could, and that appears to have confused the majority of you. My mistake.

I think I now know why there are so little mobility related posts on here because they just result in a huge flame session.
All I asked for was some advice about joint custody, mobility and processes.
Have I done research? Of course.
Here are a bunch of links to cases that I've set aside from the past week that I believe has some sort of relevancy or commonality to my issue:

http://www.familylaw.lss.bc.ca/resources/fact_sheets/movingWithChildrenIfExDoesntAgree.php

http://www.justice.gc.ca/eng/fl-df/parent/mp-fdp/p7.html

http://www.cleo.on.ca/en/publications/custodyaccess#full

http://familyllb.com/2013/12/09/can-i-move-away-with-my-kid-you-may-have-to-jump-some-legal-hurdles-first/

http://www.ottawadivorce.com/move-away.htm

http://www.canlii.org/en/on/oncj/doc/2016/2016oncj201/2016oncj201.html

http://www.lawnow.org/relocation-advisory-guidelines-an-idea-whose-time-has-come/

http://www.ottawadivorce.com/forum/f3/moving-child-case-law-habitual-residence-14033/

http://www.ottawadivorce.com/forum/f3/ex-trying-move-72km-away-my-son-so-begins-12245/

https://www.canlii.org/en/on/onsc/doc/2015/2015onsc5129/2015onsc5129.html

http://www.ottawadivorce.com/forum/f4/relocation-within-100kms-17683/

Now, I didn't post these so everyone could look at them all and pull every sliver of information out that may or may not apply to my mobility concerns. I'm just tired of feeling like a villain by keyboard warriors because I care and want to protect my children.

Have I looked into obtaining legal advice? Absolutely. I won't post their websites, but I've pulled information from their Family Law section to try to determine processes and relevancy, which I believe there is. Of course, I won't know for certain until I sit in front of them and listen.

Seems what you were actually looking for was people to jump on your bandwagon and support you and are now pissed off that it didn't happen.

Insulting the people who took the time to reply with their thoughts, advice and a reality check before you spend thousands in court trying to win this isn't going to get anyone on your side. If you can't even handle the feedback here without flying off the handle, you won't do yourself any favours in a courtroom with an aggressive lawyer poking the same holes in your story. And they will.

[rockscan]

A friend of mine has eow custody of his son plus split holidays etc. His ex moved 30 mins away to another municipality. She drives him in to his school daily. She drives him to daycare, soccer, city programs, parties etc. She pays extra for everything as a result of her move. KID IS PERFECTLY FINE.

[Tayken]

Read my threads. You will eventually find the case law that states 45 minutes is ok.

[Tayken]

1-Due to joint custody, my EX should not have made a unilateral decision to move with our children. Am I within my rights to fight to protect our children's best interests, and do I have a legal leg to stand on per se?

The distance is not far enough to fight over. Especially in court. It will take 1-3 years to get this matter into a proper trial. You have to go to a case conference and then file a motion. Depending on your court house... that could take you at least 8-10 months alone!

Nothing you mentioned is "urgent" so you are SOL.

2-Is my EX is required to notify me in writing of this move?

It doesn't disrupt your parenting time, the school, doctors, etc... Then they really don't have to. It would be a good idea for them to do so. But, in reality it isn't very far. It is like moving from east Mississauga to west Mississauga.

3-Is relocation for purposes of a new relationship is considered a material change, and unless an agreement is reached, would require a hearing?

No. It is not a material change in the children's circumstances at all. Unless the new partner is a danger to the children. The other parent is free to move in a reasonable distance. What you have stated is reasonable in my humble opinion.

4-Will My EX, in court, need to prove that this move is in the best interests of our children in order to be approved to relocate with the children, even in a 50/50 joint custody situation (Gordon vs Goertz);?

You wouldn't even be able to break the threshold of "material change" to get this heard. As the applicant it will fall upon YOU to demonstrate that the move is material in nature. Then the judge can use GvG to determine the mobility issues. But, you will fail on the "material change in circumstance" requirements. They are not easy to meet.

5-If this needs to go in front of a judge, can I ask for costs?

Yes. But, the other party has a better case for costs as you are undertaking the risk of having to prove to the court that a material change in circumstance has occured.

The children are attending the same school, same doctor, same events... etc... Then nothing material has happened. Well, something material may have happened - your feelings were hurt and you are upset - but, that is not material to the court and not material enough to have a full blown trial.

Good Luck!
Tayken

[stripes]

It sounds like your ex is proposing to do something you don't like, and while you may have good reasons for not liking the idea, these don't rise to a level where your ex should be prevented from doing it. Yes, it will be a big adjustment for the kids and they probably aren't happy about the change. But it sounds like ex is willing to do extra driving etc in order to maintain stability while she gets on with her life. She is not violating your order, she is just doing something you don't approve of. I would suggest letting this one go, as you don't have much of a case.