School is about to start! Can I move with the children in a few weeks?

Jill has a new spouse who lives in Kingston. They have been in a long distance relationship for two years and Jill is ready to move on with her life and move in with him.  Jill has had primary custody of the children since the separation (Jack has them every other weekend as well as every Tuesday and Thursday, from after school to 8 p.m.), and feels that since she has all the parenting responsibilities, she should be able to take the children with her.    After all, Kingston is only a two hour drive from Ottawa, and Jack has not been consistent in taking the children with him every Tuesdays and Thursdays due to various work commitments.  However, when Jack heard that Jill wanted to move the children to Kingston, he went through the roof! He told her that he would not consent to the move and that he would take whatever action is necessary to stop her. Time is pressing, as Jill has committed herself to the purchase of a home in Kingston and school starts in September. However, she knows from speaking with a friend that it can take months, if not years, for a family case to be heard by the court and a final decision made by a judge. She wonders if there is a quicker way to proceed…

The court process is usually long and issues such as the relocation of children away from one parent (called a “mobility case”) are very hard to decide fairly without a full hearing by way of a trial. However, in situations of urgency like Jack and Jill’s, the court can be asked to make an interim order allowing the children to move, before a trial is held.  The proceeding is called a “motion” and the mobility issue may be determined by a judge based on written evidence only (affidavits), if the circumstances justify it.

 

In the context of an interim mobility motion, the judge will try to determine what is in the best interests of the children, from the perspective of the children (and not the parents) The relocating parent will have to establish that there is “compelling circumstances” justifying the move on a temporary basis, and that there is a “strong probability” that he/she will be successful at trial. However, when the evidence provided by the parties does not show a clear trial outcome in favour of one parent,  it is very unlikely that the motion judge will authorize the move on an interim basis.  As such, moving with the children away from one parent is not a last minute decision to be made.  It is important to plan ahead to avoid heated and costly court battles!

All I need from my mom and dad after divorce

It is almost the end of the school year and the children have been coming home with their backpacks full of assignments that they completed in class with their teachers.  As Jack is sifting through the pile of papers on the kitchen counter, he found a wrinkled piece of paper written by his teenage daughter entitled: “All I need from my mom and dad”.   This is an assignment that was completed in English earlier in the year.  It broke Jack’s heart… Here’s what it said:

 

« All I need from my mom and dad »

•   I need both of you to stay involved in my life on a daily basis.  Please write emails, text me, make phone calls, and ask me LOTS of questions about school, my friends, my interests, my fears, my dreams and ambitions.  When you do not stay involved, I feel like I am not important and that you do not care about me anymore.
•   When you say you will visit me, make sure you show up because I feel so sad and lonely and often I feel the rejection over and over again.  I just want to spend time with you!
•   I want and I need to love both of you.  Please support the time that I spend with each of you and also with my step-parents.  If you act jealous or upset, I feel like I need to take sides and love one parent more than the other. 
•   Stop making me the messenger!   Communicate directly with my other parent. I often feel like the bearer of bad news and my stomach is in knots until I deliver the message. 
At my age, I don’t need this constant stress.

•   Always remember this:  I want both of you to be a part of my life on a daily basis. I count on my mom and my dad to raise me, to teach me what’s important, and to help me when I have problems.  I want to confide in you but before I do that I need to be constantly reassured that I can TRUST you and that you ARE there for me at all times!

As a parent, it is normal to feel uncertain about how to support your children during – and especially after – your divorce because often you simply do not know what to say to them.   Being a step-parent is even harder because you seem to be living in this grey zone – should I hug his/her children?  Tell them I love them?  Although they are not the parents, often step-parents are more involved in the children’s daily lives then the access parent.   The divorce is a transitional time that cannot be without some measure of hardship, but you can powerfully reduce your children’s pain by making their well-being your top priority.   If your children do not live with you primarily, do not fall into the trap of buying your children’s love with presents.  Give them the gift of time…

 

In the end, no matter their age and no matter the circumstances, all children want the same thing from their parents and step-parents such as reassurance, a listening ear, stability, routine and structure.  But most of all, children want to be part of a family that loves them and shows them every day by being present in their lives.  They want parents and step-parents to participate in their activities, to give them hugs and high fives and to take the time to cook and enjoy a nice family diner.  Simply said, your children need your presence more than your presents!

What? You moved away with the children!

Jill and Jack have been arguing for quite a while now.  For Easter, Jack took the children on holidays to his family in Toronto.  On Easter Monday, Jack sent Jill a text message saying the children would not be returning home that night as he had decided to permanently move to Toronto with the children in order to be closer to his immediate family.  Jill is in a state of shock and her first instinct is to call the police and charge him with kidnapping! All Jill wants is to get the children safely home as quickly as possible. Does Jack have the right to move out of town without telling her?

 

While Jack may certainly move, he cannot do so with the children and most importantly without speaking with Jill who has legal options available to her.  The very first thing that Jill should do is to IMMEDIATELY speak with a family lawyer as in custody matters of this kind, acting with all speed is absolutely crucial.  Every hour and every day that Jill delays in taking court action works against her chances of getting back the children quickly.

 

Under no circumstances should Jill consent to Jack’s removal of the children or sign any agreement that deals with custody and access matters until she and her lawyer have reviewed it.  Similarly, nor should Jill say or write anything to Jack that could be interpreted as agreeing with his removal of the children from the family home.  Jill will also be required to start an urgent court proceeding against Jack for the children's return. Custody proceedings are very fact-specific and to save time and legal fees, Jill will need to provide her lawyer with the following information:

 

1. the family’s background (names of the parties and their children, dates of birth, length of relationship, employment, income, etc.);

 

2. Short timeline of the main events leading up to Jack's removal of the children;

 

3. List of family members, daycare providers and friends who can help her care for the children if the court orders their return to the family home;

 

4. why it would be in the children’s best interest to be in your care until the matter is sorted out, and;

 

5. what access, if any, do you propose the other parent to have.

 

The reason for the parent's moving is irrelevant to the court unless it helps to determine the parent's ability to provide for the children's needs. When making parenting decisions, the courts sole concern is the child’s best interest – what are the child's needs and the ability of each parent to satisfy those needs. Of course, the relationship that the child has with each parent will also be examined. Courts do not like to introduce instability into the children’s lives, nor do they want children to remain in environments that leave them vulnerable to emotional and physical harm. Thus, the trend in the Ontario courts has been to disallow the removal of the children from their family home if there is no compelling reason to show that such a move is in their best interests. In Jack’s case, for instance, the court could order for example that he return the children to Jill or have the police apprehend him and return the children to Jill.

 

Moving away with the children without proper discussion and agreement between both parents will not only disrupt the children’s lives, it will create lots of fear and unnecessary anxiety. Speaking to a family law professional and with the other parent before making such a move is a must!