Moving, steps to prevent is it even possible?

[Wyntermcd]

Brief summary of the scenario

There is a separation agreement in place.

There is no mention of anything regarding moving.

Ex has sole custody.

Agreement defines set access time (standard 1 day, every other weekend)

Kids informed us of a potential upcoming move over two hours away (currently both parents live in the same city)

Can ex do this without consent? Over two hours away means only weekends would be doable, and would therefor violate the sep agreement.

What would be the steps required to keep this from happening ?

[Berner_Faith]

Oink in right in that THEY can move where ever they chose, but they cannot move the child where ever they chose. It affects your access and therefore cannot be a unilateral decision.

Unfortunately, the courts to not work on "what ifs" or "could bes" so until the ex makes mention of the move, or the move happens there is little you can do. When/if the move happens you get your butt to the court house and request the immediate return of the child. I am sure Tayken will chime in, there are many threads on here about this

[Links17]

Is she moving to give the kids a better life - i.e: she'll get a (better) job or better support for the kids (She wont need to work and can stay home)? If so what is the income difference?

Do your kids have special needs?

Is she potentially moving to reduce your access?

What are family supports like in both places?

She has sole custody, in my opinion if she is moving for a legit reason that will benefit the kids then you'll be SOL.

Thats my opinion, other ppl disagree.

[Links17]

Most access parents are a luxury for children given the same consideration as a high end game console....

[HammerDad]

The ex can move where ever they choose. However, they cannot relocate the children if it negatively affects the Non-Custodial Parents parenting time unless they:

a. get the NCP's consent;
b. a court order allowing them to relocate; or
c. the NCP goes "woe is me" while doing nothing and acquiesces to the move by their inaction.

To be clear, how old is the child? How reliable is this information?

If you feel it is reliable, you need to advise your ex via email and Registered Mail, that you don't consent to the relocation of the child(ren) as it will negatively impact your parenting time with the child(ren). That the children are established in the community in which they reside and have friends and family. And that you do not believe that relocation is in the children's best interests. And should they attempt to relocate the children without your consent, you will seek the appropriate remedy in court.

The ex cannot just up and move with the kids without notifying you and getting your consent. If they do, it will look really poorly on them if/when you drag them to court. But only if you drag them to court as soon as reasonably possible. Don't wait 6-8 months and then look to file a motion, as it simply won't work.

The ex will need to prove why the move in the children's best interests. If the move is for new employment that will substantially increase their standard of living, or for schools better suited to their needs, or that the vast majority of their extended family is in the new location, then a court may allow the move. But that is when you fight to claw back some of the time you would lose in the mid-week by asking for 1/2 of summer, every March Break etc. Try and get over compensated in they are successful in the move. Also ask that the ex be responsible for transportation as you shouldn't be negatively affected in that regard, or at worst, that each parent be responsible for picking up the kids at the beginning of their parenting time.

Unlike others, I don't see moves as inevitable. They can be fought. And if one isn't successful in preventing the move, you must have a Plan B, which is getting the parenting time you would lose back.

[OrleansLawyer]

Can ex do this without consent?

You have knowledge of it. Take steps to oppose it if you disagree.

There is no mention of anything regarding moving.

Ex has sole custody.

Unless otherwise agreed to, the choice is hers.

What would be the steps required to keep this from happening ?

Go to court. You may wish to retain or consult with a lawyer before doing so, particularly if your separation agreement was done without ILA.

[Tayken]

Oink in right in that THEY can move where ever they chose, but they cannot move the child where ever they chose. It affects your access and therefore cannot be a unilateral decision.

That is 100% correct BF!

Just because a parent is the "sole custodial parent" it doesn't incorporate the "right" to move the children from their habitual residential location.

See my numerous posts on this. The court has held time-and-time-again that the designation of "sole custody" does not permit a parent to move.

A 2 hour away move would bring this matter to being a "mobility" case generally. Or to a point a justice would consider "mobility" being an issue possibly.

The challenge the OP faces is that they have a "standard" 1-day-every-other week access? Hate to inform the OP but, this isn't standard and as part of the consideration will fall negatively on the OP because they only have 1 day of access ever-other-week. An argument can easily be made for facilitating the access whereby the moving parent drives 100KM and the "access parent" drive the other 100KM (considering it is a 2 hour drive away at 100KM/hour) at a designated exchange location. Also consider that this is an "1 day-every-other-weekend" situation.

What the OP does have working for them is that they can make a really great offer to settle.

1. That the child/ren be permitted to move.

2. That the child/ren not be moved from a 20KM radial distance from their future school

3. That the other parent provide 60 days notice prior to any move of the children's primary residence and if it is outside of the 20KM radius from the agreed upon school and the parents cannot agree then the matter is to be arbitrated.

4. Access be changed to every-other-weekend whereby the child/ren reside from Friday night until Sunday night with the OP. The exchanges to occur at 7:30 PM on Friday Night and Sunday Night at an agreed upon location that is equal distance from the agreed upon school and the OP's current residential address.

Unfortunately, the courts to not work on "what ifs" or "could bes" so until the ex makes mention of the move, or the move happens there is little you can do.

Depends on if you have an email that explicitly states "i will be moving to city/place X with our children and there is nothing you can do about it because I am the SOLE CUSTODIAL parent". It all depends on the cogent and relevant evidence and the argument brought forward. An email stating that there will be a move, approximate time, etc... is often enough to bring the matter on motion.

When/if the move happens you get your butt to the court house and request the immediate return of the child. I am sure Tayken will chime in, there are many threads on here about this

The first thing to do is to oppose the move in principal and basically state that it is not in the child's best interests. Send this as a WITH PREJUDICE letter. OP if you need help I can write one up and post it here for you.

Good Luck!
Tayken

[Tayken]

c. the NCP goes "woe is me" while doing nothing and acquiesces to the move by their inaction.

EXCELLENT POINT that all non-custodial-parents and even joint custodial parents should consider. The acquiesces of being and acting as a parent is not a great excuse after the other parent has moved.

Unlike others, I don't see moves as inevitable. They can be fought. And if one isn't successful in preventing the move, you must have a Plan B, which is getting the parenting time you would lose back.

I am of the same opinion as Hammerdad. It isn't "inevitable" and can be managed through proper court action ("fought"). As well, the "Plan B" is something you should really consider.

2 hours isn't that far and if you lock down in an agreement some sort of radial location to the children's school that they will be attending in the future there will be less "surprises" from the "custodial parent". As well, you can possibly get more access time... Which is always in the child's "best interests".

Good Luck!
Tayken

[Tayken]

Go to court. You may wish to retain or consult with a lawyer before doing so, particularly if your separation agreement was done without ILA.

Also excellent advice that the OP should seriously consider.

[Wyntermcd]

Sorry, I was unclear on a couple of things. The current access is one weeknight every week, and then every other weekend Friday till Sunday.

We don't know if this is a serious yes ex is moving or if this is a case of something that ex wishes to do in the future. Children just mentioned they have been looking at houses to buy.

[Tayken]

Sorry, I was unclear on a couple of things. The current access is one weeknight every week, and then every other weekend Friday till Sunday.

Thank-you. The mid-week access will screw up the other parents desire to move 2h (200KM) away big time.

You need to send a WITH PREJUDICE letter advising the other parent of your position on any move/relocation of the children's habitual residential location. My offer stands if you need assistance.

Good Luck!
Tayken

[OrleansLawyer]

Just because a parent is the "sole custodial parent" it doesn't incorporate the "right" to move the children from their habitual residential location.

I would be cautious with this. Case law is mixed when an access parent has sought to prevent a sole custodial parent from moving the child in a way that has a deleterious effect on regular access.

An email stating that there will be a move, approximate time, etc... is often enough to bring the matter on motion.

Agreed.

Or, alternative relief - the parties cannot move outside of [reasonable radius in km] without mutual consent or a court order.

if one isn't successful in preventing the move, you must have a Plan B, which is getting the parenting time you would lose back.

Very prudent.

We don't know if this is a serious yes ex is moving or if this is a case of something that ex wishes to do in the future.

Have you considered asking?

[Tayken]

I would be cautious with this. Case law is mixed when an access parent has sought to prevent a sole custodial parent from moving the child in a way that has a deleterious effect on regular access.

I am of a somewhat different opinion:

In determining whether to accede to a custodial parent's request to relocate any child the court is obliged to consider the factors set out in subsection 24(2) of the Children’s Law Reform Act R.S.O. 1990, c C. 12, as amended (“the CLRA”). The court is obliged to consider all of the child’s needs and circumstances including:

BEST INTERESTS OF CHILD — The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing; [SO. 2009, c. 11, s. 101]

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Furthermore, in making a determination on a request of any parent to alter a child’s residential location, the court is further bound to apply the guiding principles set out in Gordon v. Goertz 1996 CanLII 191 (SCC), (1996) 134 D.L.R. (4th) 321, 2 S.C.R. 27. In rendering any decision and ordering a new trial of the matter, Justice Goodman set out those principles in Paragraph 52, as follows:

1. The judge must embark on a fresh enquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

2. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect and the most serious consideration.

3. Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.

4. The focus is on the best interests of the child, not the interests and right of the parents.

5. More particularly, the judge should consider, inter alia,

(a)the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent’s reasons for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) the disruption to the child of a change in custody; and

(g) the disruption to the child consequent on removal from family, schools and the community he has come to know.

I am of the opinion that case law is quite clear and has been consistently applied and easily argued by a capable solicitor. I would not recommend that any unrepresented litigant try to self-represent in a mobility matter unless they are very educated in the nuances of case law regarding "habitual residence" and what defines that very complex and obscure concept.

Mobility cases are not easy to deal with even for the most experienced barrister and solicitor. They are incredibly time consuming for the litigants, barristers and solicitors representing the litigants and the justice system.

To quote Justice Mossip from Van Rassel v. Van Rassel, 2008 CanLII 37217 (ON SC)...

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.

Good Luck!
Tayken

[fireweb13]

I went through a situation that was very much the same. Ex wanted to move 2 hours away and the only way that she could do it would be to reduce half of the time I spent with our daughter.
Be very careful, and take the approach of what others will see is the best interest of your children. In my situation my ex put herself into a situation where if the Judge did not let our daughter move with her, that my ex would either be homeless in our current town or we would have to completely change access and I would become the primary access parent. The Judge sided with my ex, even though almost everything in their paperwork was fabricated they made a more compelling story and I was stuck with costs.
It can be fought, but its not easy and you really have to be sure or you can be stuck with costs.
If your arguement is lack of parenting time, and they counter with added vacation time you will likely lose IMO. If its traveling distance and they offer to assist or work with you for traveling you will likely lose IMO.
You need to find out the reasons for the move, how does your ex feel it will benifit their family dynamic and how will it be better for your children while they are with your ex.

[Tayken]

I went through a situation that was very much the same. Ex wanted to move 2 hours away and the only way that she could do it would be to reduce half of the time I spent with our daughter.
Be very careful, and take the approach of what others will see is the best interest of your children. In my situation my ex put herself into a situation where if the Judge did not let our daughter move with her, that my ex would either be homeless in our current town or we would have to completely change access and I would become the primary access parent. The Judge sided with my ex, even though almost everything in their paperwork was fabricated they made a more compelling story and I was stuck with costs.
It can be fought, but its not easy and you really have to be sure or you can be stuck with costs.
If your arguement is lack of parenting time, and they counter with added vacation time you will likely lose IMO. If its traveling distance and they offer to assist or work with you for traveling you will likely lose IMO.
You need to find out the reasons for the move, how does your ex feel it will benifit their family dynamic and how will it be better for your children while they are with your ex.

Were you represented or unrepresented?