What are my parental mobility rights in Ontario? Can I relocate out of Toronto if the kids live with me primarily?
Q&A By John T. Syrtash, Associate,
Garfin Zeidenberg LLP, a Toronto family law lawyer for the past 38 years
Question: What are my parental mobility rights in Ontario? Can I relocate out of Toronto if the kids live with me primarily? I am the primary parent of two young children. I am currently negotiating a separation agreement, and I am confused about the term “custody.” If I settle for something less, like the term “primary care and control” or “residentialparent,” will it be harder for me to relocate with my children if I ever need to move away from Toronto, Ontario at some time in the future? For instance, I might find a better job or wish to remarry. Can I relocate if the kids live with me primarily? If I lose such a fight in Court later, what do I do?
Answer: The term custody in itself will not be the determining factor. What matters to the courts are various factors. According to the Ontario Court of Appeal, it is not only what the agreement or Court Order says, but which parent has provided the primary care role in reality. If the facts on the ground measure up to what the agreement or Order has determined, then parents have traditionally been permitted to move with their children; depending on the level of Court, the dispute is decided. If the dispute is heard by the Court of Appeal, then the primary caregiver is usually permitted to move if they have a good reason to do so, i.e., a new job or new partner. However, the results in what is called “mobility rights” cases are very different.
In Ontario, how a judge will decide is anybody’s guess when deciding a mobility rights motion or trial. The outcome before reaching the Court of Appeal will depend more on the facts of each case and less on principles of law, and which judge hears the matter. Frankly, at the Ontario trial or motions level, there appears quite often to be no law or
guideposts. And the trial judges or “motions judges” do not appear to be consistently following the rules laid down by the Court of Appeal, even though this appellate Court’s decisions are considered legally binding on the lower courts.
Trial or motion Court judges simply decide each case on the facts before them based on the vague “best interest”
tests, which becomes largely discretionary. This fact has meant legal chaos when trying to rationalize conflicting decisions: The “lower” courts have often ruled that even though a parent is a primary or custodial parent, a child
should not be separated from an access parent with whom a child is sufficiently bonded. It would betray the child’s best interests. And the primary parent may not have sufficient reason for moving.
Such a primary caregiver or custodial parent in such cases has often been denied permission to move permanently with the child, irrespective of the principles laid down by Ontario’s Court of Appeal. In such a case, the best bet
is for such a parent to consider an appeal. If you have the money to appeal or can get Legal Aid then seek the right competent lawyer to advise you about a possible appeal. But if you have such negative ruling then do so quickly since the deadline for an appeal is only 30 days after a trial and only 7 days after a “temporary” or interim Court Order, from which you need to apply for permission to appeal from the Court.
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John Syrtash is an associate and family law lawyer with the
Toronto firm of GARFIN ZEIDENBERG LLP.
Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.
John T. Syrtash,
GARFIN ZEIDENBERG LLP
5255 Yonge Street, Suite 800
Toronto, Ontario, Canada M2N 6P4
Cell: (416) 886-0359
Fax: (416) 512-9992
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