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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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  #1  
Old 02-26-2018, 12:16 PM
MommaMouse MommaMouse is offline
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Default Moving out of Country

I have an opportunity to apply for a great promotion within my company. However the position is in the US not Ontario. I have Full custody of my 2 kids age 12&11. NCP has access every other weekend and one midweek night, but only the 11 yr old goes. There is no moving clause in our agreement and both kids are in favor of the hypothetical move.

My current job is unstable and we are going through many layoffs. I would like to advance my career and secure my job. But want to weigh all the factors before applying. I'd be looking in at least a 5 figure pay increase.

Has anyone moved out of province or out of country that is willing to share their experience/ what the process is with me?

How long does the process generally take and what the success rates are?
  #2  
Old 02-26-2018, 12:53 PM
HammerDad HammerDad is offline
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Haven't gone through it, but the law is Gordon v. Goertz. You would need to give your ex notification that you are contemplating moving out of country. You will need to come up with a plan that compensates the ex for lost parenting time (ie. the ex gets all summer, holidays, reduced c/s for travel costs etc.) The ex will either agree or disagree.

If they agree, then you amend your parenting plan/agreement and you're good to go.

If the ex doesn't agree, you will need to file a motion requesting permission to move with the kids. There is nothing preventing you from moving, it is just the kids can't be moved without the ex's consent. Your motion will need to show how the move is in the best interests of the child. The ex will counter with why having the children stay is in their best interests. A judge will go from there.

It is a crap shoot at best on success rates.
  #3  
Old 02-27-2018, 12:09 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by MommaMouse View Post
I have an opportunity to apply for a great promotion within my company. However the position is in the US not Ontario.
Too bad.

Quote:
Originally Posted by MommaMouse View Post
I have Full custody of my 2 kids age 12&11.
Doesn't give you the right to move their habitual residential location. Just make decisions about their school and medical needs. Custody is "highly overrated" unless the children have significant medical issues.

Furthermore, professionals mostly are involved with the "custodial" decisions. Unless you are a doctor or a teacher. Ultimately, 99% of parents do what is recommended by teachers and or doctors. Further making "custody" even more useless of a term.

In fact, "sole custody" can be a curse because the court often expects your conduct to be top-notch and be almost near-perfect.

Quote:
Originally Posted by MommaMouse View Post
NCP has access every other weekend and one midweek night, but only the 11 yr old goes.
The 12-year-old should be going and you should be making them go. If they don't go the tablets and other devices are taken away. Privileges are removed.

As Justice Quinn stated in Gerenia v. Harb:

Quote:
Undoubtedly, there are many tasks that a child, when asked may find unpleasant to perform. But ask we must and perform they must. A child who refused to go on an access visit should be treated by the custodial parent the same as a child who refused to go to school or otherwise misbehaves. The job of a parent is to parent.
You should be doing your job and parent and tell the 12-year-old to go. The other parent in this matter could easily bring a motion to this effect. Remember how I said sole custody is more of a curse... This is why. The expectation, as stated by one of the most respected judges in Ontario, is for you to facilitate the access. I can post piles of case law to this effect.

It's a very common quote in case law to "sole custody" parents like you.

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Originally Posted by MommaMouse View Post
There is no moving clause in our agreement and both kids are in favor of the hypothetical move.
It doesn't matter. In all cases, even if the clause is there, the court applies Gortez v. Gormez in all mobility matters if it goes to court.

Quote:
[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, http://canlii.ca/t/1zt7g#par1, retrieved on 2018-02-27.
I highly recommend you click on my name in this thread, and read all of my mobility main-thread postings. I write extensivly about the issues with parents wanting to move children from their habitual residential location. As Justice Mossip points out it is not easy to do.

Quote:
Originally Posted by MommaMouse View Post
My current job is unstable and we are going through many layoffs. I would like to advance my career and secure my job. But want to weigh all the factors before applying. I'd be looking in at least a 5 figure pay increase.
Which is great for you and the courts don't really care. What the court cares about is... Is it in the best interests of the children? (Read up on mobility and the test you have to get through from Gortez v. Gormez.) Its no cake walk and not done by default based on "custody" alone.

The onus fall upon you as the moving party (both in court and physically) to demonstrate how it is in the child's best interest.

Quote:
Originally Posted by MommaMouse View Post
Has anyone moved out of province or out of country that is willing to share their experience/ what the process is with me?
The easiest way is to obtain the consent of the other parent and avoid court if possible.

I would recommend:

1. Withdraw of child support;
2. All summer the children reside with the other parent;
3. Christmas with the other parent; and
4. You pay for all travel expenses, both ways.

That is if you want to avoid court and not have to spend upwards of 250,000 in legal fees and the next 2-3 years in court with a mobility matter. The OCL or a private assessor will get involved. They will want to know why the 12 year old isn't going for access visits and your life will be under the microscope this whole time. All while you are paying upwards of 350-850 an hour for a lawyer who is an expert in mobility.

You move without consent and you are in direct violation of Section 283.(1) of the Criminal Code of Canada ("Abduction"). The other parent will bring an emergency ex-parte motion under the Hauge Convention and have the children returned to their habitual residential location.

Furthermore, the courts are Canadian. Proud Canadian judges. Many who don't like what is going on in the US of A. So any argument that they children will have better schooling, it is safer, or any nonsense like that will make you look crazy.

To be frank. It isn't a good idea to move the children. Parent today and look for opportunities once they hit post-secondary education.

Or in the alternative, transfer majority access and sole custody to the other parent, pay child support and move.

Quote:
Originally Posted by MommaMouse View Post
How long does the process generally take and what the success rates are?
Success rates are unpredictable but, in my review, they are incredibly low these days for the moving parent. Especially when considering the age of your children are 11 and 12. They are very established in their habitual residential location at that age.

My recommendation would be to not move. Unless you have 4-5 million in capital kicking around to spend on legal fees.

Good Luck!
Tayken
  #4  
Old 02-27-2018, 04:02 PM
MommaMouse MommaMouse is offline
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Thanks Tayken for your in depth answer, as I said I haven't even made a decision to apply as I don't know what my options are, or what's all involved. I have to consider everything very carefully as I'm the sole supporter for our house (I do however collect $100/month in CS) I would certainly not move without the proper steps in place. You have given me a few thoughts I had not considered.

As for my 12 year old not going that's another matter all together. CAS and lawyers have been involved and attempted to force my ex into mediation with the 12 yr old, but so far he refuses. CAS and the Police have both informed my 12 year old (Which I am FURIOUS about) that she can make the decision not to go if she doesn't feel safe. So yes, we take away tablets, ground her, make her call him and document the efforts to get her to go. So the next step the lawyers tell me is to wait for him to bring a motion and involve OCL to see if they can help mediate a resolution between the two of them. It is a very messy situation that is being handled.
Thanks again for the input.
  #5  
Old 02-28-2018, 10:44 AM
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Tayken Tayken is offline
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Words of caution...

Quote:
Originally Posted by MommaMouse View Post
As for my 12 year old not going that's another matter all together.
It won't be if you involve the court.

Quote:
Originally Posted by MommaMouse View Post
CAS and lawyers have been involved and attempted to force my ex into mediation with the 12 yr old, but so far he refuses.
The CAS has no authority to do this. They are governed by the Family Services Act. They do offer social services but, to interfere with custody and or access they need to bring forward an application under the Child and Family Services Act.

Many parents make the mistake believing CAS authority. If the other parent was informed of this and retained a lawyer they could easily get a court to order the child to attend for access visits. In fact, they could bring a contempt motion quite easily to do this.

The case-on-point to this is Scrivo v. Scrivo. It's a long set of case law. But, ultimately, the mother wouldn't facilitate access and ended up with a huge legal bill and an order for access.

Quote:
Originally Posted by MommaMouse View Post
CAS and the Police have both informed my 12 year old (Which I am FURIOUS about) that she can make the decision not to go if she doesn't feel safe.
Actually, that is incorrect. The CAS and Police cannot force her to attend for access visits unless a court order orders them to do so. It isn't a matter of them having any power to do anything for the child. But, the onus falls on the custodial parent to facilitate access. Now if the other parent isn't seeking it... You don't have an issue.

Reunification therapy would be the next step.

Quote:
Originally Posted by MommaMouse View Post
So yes, we take away tablets, ground her, make her call him and document the efforts to get her to go.
Make sure you keep a detailed log of the expectation and how you are enforcing it. Don't go soft with it either. A court has a high expectation that you will expect her to go and if she doesn't there are significant consequences.

Quote:
Originally Posted by MommaMouse View Post
So the next step the lawyers tell me is to wait for him to bring a motion and involve OCL to see if they can help mediate a resolution between the two of them. It is a very messy situation that is being handled.
As the sole custodial parent, you can sign her up for reunification therapy (if the other parent agrees) and expect her to go to that.

Save yourself the cost and nonsense with the OCL... This is what they are going to recommend anyways.

There are lots of great services in southern Ontario for this.

Good Luck!
Tayken
  #6  
Old 03-03-2018, 03:56 PM
WorkingMom2007 WorkingMom2007 is offline
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Default Talk to a lawyer

Dear Mamma Mouse,

I think Tayken to be a bit harsh in stating that it's "too bad" you should want to better yourself by getting a job outside of Canada. Talk to a lawyer. While it may be true, that you are moving your child out of his/her habitual country, I would argue his/her habitual home has been with YOU.

The case Tayken has cited is very popular but not the only one. A more recent one, Browne v. Cerasa, 2017 ONSC 4684 (CanLII), the mother was allowed to move with her son to New York. Your circumstances are likely to be different from that of this case, but only a lawyer is best at advising you.

https://www.canlii.org/en/on/onsc/do...7onsc4684.html
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Old 03-03-2018, 06:24 PM
ensorcelled ensorcelled is offline
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Hey mama!

GOOD FOR YOU on looking to further your job prospects, income and career and being a good example for your babies! While this order was temporary, here is another example where a judge recognises the difficulties for women to stay in one spot when there are opportunities abroad:

https://www.canlii.org/en/on/oncj/do...&resultIndex=1

Big hugs! I'm sure you'll make the right decision.
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Old 03-04-2018, 11:09 AM
WorkingMom2007 WorkingMom2007 is offline
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"In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the childs access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new."

Really sums up a judicial view of child's best interest. Thank you Enscrolled for sharing this.
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Old 03-04-2018, 04:07 PM
ensorcelled ensorcelled is offline
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Quote:
Originally Posted by WorkingMom2007 View Post
"In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the childs access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new."

Really sums up a judicial view of child's best interest. Thank you Enscrolled for sharing this.
Anytime. It's a good read, and that dad sounds..interesting.

It's no secret that even if they are working full time, share custody, yada yada that women fare worst financially post-divorce than men do. It was nice reading a decision that acknowledges this. Men, for whatever reason, seem to have softer landings, even if they are paying child support.

*shrugs*

I hope you decide to go for it. Your kids will learn so much by seeing you challenge yourself and be a boss mom (while keeping their relationship with their dad a priority too).
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Old 03-05-2018, 10:14 AM
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Tayken Tayken is offline
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Originally Posted by ensorcelled View Post
here is another example where a judge recognises the difficulties for women to stay in one spot when there are opportunities abroad:

https://www.canlii.org/en/on/oncj/do...&resultIndex=1
Unfortunately, it is a case from 2006 and the moving parent is a medical doctor.

Quote:
The respondent mother, Kinga Powers, is a medical doctor and the custodial parent of Elliott Powers, born on 1 February 1998. She has accepted a one-year fellowship in advanced minimally invasive surgery (MIS) at a Boston hospital that is affiliated with Harvard Medical School. She has brought a motion to change the final order of Justice Marvin A. Zuker, dated 6 August 2004, to permit her to take Elliott with her to Boston until 1 July 2007. [See Powers v. Powers, 2004 ONCJ 281 (CanLII), 11 R.F.L. (6th) 373, [2004] O.J. No. 4696, 2004 Cars*well*Ont 4738 (Ont. C.J.).]
It further relies upon a dated concept of the "primary caregiver" that you won't see much mention of these days in mobility matters. Why? The judges who hear these motions now are generally over-educated on modern custody and access decisions.

In 2018 it isn't great case law to rely upon.
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