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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 09-17-2010, 09:07 PM
asnf asnf is offline
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Default Child Mobility Question

Just as when I thought things are over with my case, something came up recently. My ex has sole custody of our daugther. We live in Ontario. Now I am being told that she is moving to Britsh Columbia with our daugther. There is no provision in the order stating about mobility aside from a paragraph stating that all issues with the Child are to be dealth with Ontario courts. When they move, obviously access will be a problem. What are my option here.

Troubled dad, wanting time with his child protected.
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Old 09-17-2010, 09:26 PM
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Well a mobility clause should be included in every agreement in practice - I would definatly file a complaint for the finacial hardship it will cause you for your access. The main question would be why is she moving?
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Old 09-17-2010, 09:47 PM
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Thank you for your reply. Unfortunately, a mobility clause was not in the order (on consent). I failed to ask for that. She is moving to join a family member there as I was told.
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Old 09-17-2010, 10:05 PM
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Big problem is that she has sole custody. How old is the child and how much access do you have? What other relatives do the children have in Ontario?

She will need to make a request to move the children, and she will need to make it clear why she intends to move, and those reasons will need to be weighed against your access rights. If the courts allow her to move, then you can ask that she pays your access costs for the few times a year you will get your access.

Often one parent just up and moves, and once the kids are in school in the new place, it is hit or miss if a judge orders the parent to return the child to the previous location.
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Old 09-17-2010, 10:18 PM
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Our child is nine years old. I have every other weekend (full weekend from 8pm Friday to 8PM Sunday) access. In addition, I have one weekday night with the child where she sleeps at my place. I have consented to full custody in exchange for this access rights but again the mobility is my problem now. Often I can go see my daughter as well unscheduled provided I asked the permission of the mother,which is a provision in the order. They haven't moved yet and this is why I think I need to do something quick. Thanks again for replying.
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Old 09-17-2010, 10:24 PM
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I don't believe she has to make a request to move if it isn't in your agreement however in order to stop the move the ball is in your court to do file a motion to prevent the move.

She would have to give very good reasons (which are hard to come by) why it's in the child's best interest to move away from you and how she would facilitate the your access to the child. She would have to have a much better reason than joining a family member there to disrupt the child's relationship with you.

And yes, even though she would likely not be granted permission to move the child, you should act fast because once it's done it's much more difficult to get an order to bring the child back.
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Old 09-17-2010, 10:24 PM
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You have a good argument to force them to stay put. In my affidavit I would point out how you agreed to her having sole custody in exchange for the access you have now. I would ask for shared parenting, as you do have much more access than many others in similar situations.
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Old 09-17-2010, 10:34 PM
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The mobility issue is a material change of circumstances concerning your child regardless of current regime. Best interest test is applied once material change established. Gordon v. Goertz is the leading authority on the subject.

Supreme Court of Canada - Decisions - Gordon v. Goertz
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Old 09-17-2010, 10:40 PM
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You are also able to file to prevent the move. How is moving a child in grade 4-5 (in the beginning of the school year) across the country, to an area they don't know, away from their father...in the child's best interest?

File an emergency motion to prevent the move, barring that, apply for interim custody in the meanwhile...that application alone may be enough to make Mom think twice.
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Old 09-17-2010, 10:43 PM
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Even with sole custody, the parent has the duty to inform...at least 60 days in advance, and must have grounds they feel a move would be in the child's best interest...although courts are more likely to allow without the clause, and by the sounds of things, you're lucky you didn't find out from BC. The clause in your agreement regarding jurisdiction will become void. Access and custody must be heard in the jurisdiction where the child resides...typically.

I would get my butt into the courthouse on Monday morning at 8:30!!
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