Moving provinces with/without child

I don’t have a legal custody agreement with my ex. I want to move provinces however I know I would need his permission to do so. My ex also wants to move but he seems to think I have no say and he can do what he wants because our son does not reside with him. So my question is if I’m not able to move without permission, is he able to? Again my son lives with me not my ex but sees him on weekends.

Asked 7 months ago in Cornwall, Ontario
Categories: Family Law

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John  P. Schuman, C.S.

Answer by John P. Schuman, C.S.

VerifiedOntario lawyer

If you, as a primary parent, want to move, you would need your ex's permission because you moving will interfere with him parenting your son.  However, if he moves, then he will be interfering with his own time with your son, and, presumably, that will not affect your time with the kids.  However, if he is moving away anyway, then it will be hard for him to deny you permission to move because your moving will not affect him or his time with your son,  If you were moving to Australia or Europe he might have a reason to oppose, but chances are if he is moving far enough way that he could not continue to see your son on weekends, then there is not reason to oppose you moving.

Deciding whether to let one parent move away with the kids is one of the hardest questions judges face and they consider a lot of 
factors in deciding whether to allow a parent to move away with the kids.   The most important of these factors, perhaps the only one the judge will care about, when deciding any parenting matter, is what is in the child’s best interest.  Going back to your question, if he is moving away anyway, it may not affect the kids at all if you move away. 

If your ex won’t give you permission to move, then you should start family court proceedings right away.  Without his consent, you cannot move your son and a judge could order you to bring them back, or worse, if you just cut of a child from a parent.   Any lawyer who tells you that he or she can predict, with certainty, how a judge will decide a “mobility case” (a case about moving with the kids) is lying.  Judges are all over the map on these cases and each case depends on its own specific facts.  But, if you moving with the kids won’t impact the other parent because he or she is moving anyway, you have a pretty good chance.  
Your ex may even have to pay some or all of your lawyers' fees if his reason for opposing your move are not reasonable. 

Also, a parent having to spend a lot of money to exercise access is one of the few bases on which a judge can reduce child support below the Table Amount in the Child Support Guidelines.  That may not impact your decision to move, but it is something to consider.   It is harder for a parent to ask for a reduction of child support because of travel costs if the parent moved away and chose to incur those costs. 

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child custody, moving with the children, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.  .

Posted 6 months ago

John Schuman is a Certified Specialist in Family Law.  He is the partner managing the Family Law Group at Devry Smith Frank LLP, a full service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email Listen to the Ontario Family Law Podcast!

Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For formal legal advice, hire a lawyer (many give a free first consultation). Contact John P. Schuman, C.S., or search the Lawyer Directory.

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