The parent who has interim custody of the child may need to relocate their place of residence to another place that meets the best interests of the child. Section 24 (11) of the Children’s Law Reform Act and the Supreme Court of Canada’s decision in Gordon v. Goertz provide good direction for the issue of relocation. In the Gordon v. Goertz decision, the S.C.C. held that the law for relocation orders can be summarized as follows:
1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child;
2. If the threshold is met, the judge on the application must embark on a fresh inquiry 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;
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances;
4. 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;
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case;
6. The focus is on the best interests of the child, not the interests and rights of the parents.
The courts consider:
(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 reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
In the recent Vinnik v. Berman (2015 ONSC 6592) decision, the courts decided on this very issue and considered the following factors in permitting the Applicant to relocate with the child:
(a) The Applicant and her family did not have a residence and were living “out of suitcases”;
(b) The move provided financial stability and financial benefits to the Applicant and her family;
(c) The school that the child was presently attending was similar to the school that the child would attend after being relocated;
(d) The access that the Respondent had with the child would largely remain unchanged;
(e) The Applicant agreed to accommodate the Respondent with respect to extra transportation costs and effort for the increased commute;
(f) The standard of living for the Applicant’s family including the child will be better post relocation;
(g) The disruption for the move for the child would be minimal; and
(h) The Applicant and her family will be in a better financial position and will be “happier” which will benefit the child.