Going through a separation or a divorce can be a challenging time for both parties involved. When children are involved, it can make things even harder. Those with children are forever tied to their former partners, which means that a parent’s life choices must be made with consideration of the other as it relates to the children.
Following a divorce, it may be that one parent decides to move. Parental relocation can be difficult especially when one parent wants to take the children and move a distance away from the other parent and determining what is best in the interests of the children is easier said than done.
Equal or shared parenting time is never presumed
When it comes to parenting time, the Divorce Act maintains the “maximum contact principle.” The maximum contact principle holds that “a child should spend as much time with each parent as is consistent with the child’s best interests.” A common misinterpretation of the principle is that maximum contact with each parent is what is needed for a child’s best interests.
The Supreme Court of Canada recently clarified the rule
The Supreme Court has recently clarified this principle in Barendgregt v. Grebliunas. Rather than encouraging as much time with each parent as possible, the principle really means that a child should be spending as much time with the parent as is consistent with the child’s best interest. In other words, it cannot be presumed that shared or equal parenting time is best. Courts should assess the child’s physical, emotional, and psychological well-being, safety, and security as well.
The maximum contact principle is challenged when one parent wants to move. The Divorce Act includes a myriad of factors judges must consider when assessing a request for relocation:
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
Ontario parent wanted to relocate to former home province
In Springstead v. Springstead, the mother was seeking an order for sole custody so that she could relocate to Halifax, Nova Scotia with her children. She and the father had married in Nova Scotia in 2010, where they lived until relocating to Ottawa in 2018. In early 2019, the mother took a leave of absence from work to be treated for PTSD and other mental health issues.
The marriage was characterized by conflict, with the mother being charged with assaulting the father. As a result, the father moved out of the family home in March 2020, which was sold in June 2020. During this time, the spouses had equal parenting time.
One parent’s mental health may not be enough for relocation
In her decision to relocate to Halifax, the mother explained her need to regain emotional, physical, and mental health in the presence and with the support of her family and friends in the Eastern province. She alleged that an improvement in her mental health was also in the best interests of the children.
The court disagreed. Even though the mother was the primary caregiver during the marriage, the father had recently changed jobs to one that allotted him more time to spend with his children. He had recently purchased a home close to the children’s school, and the children and his new partner got along well. The children did not have any ties to Nova Scotia and hardly remembered living there. In making its decision, the court explained:
“While I do not disagree with the premise that a healthy parent makes a better parent, the evidence presented in this case convinces me that the Mother is already an excellent parent…. Dr. Holowaty wrote a letter to Ms. Mitchell where she stated that the Mother is an excellent parent and because of her hard work with psychological treatment, she has become a better parent. Dr. Holowaty further wrote in that letter that parenting is an area in which the Mother seemed to be keeping up very well. Ms. Mitchell echoes Dr. Holowaty’s views, saying that the Mother is a conscientious parent: she ensures that the children are followed medically, she actively engages with the children, she gives the children positive feedback, and she has the capacity to care for the children.”
As a result of the positive evidence before the court, the mother’s request to relocate was denied. The parents would resume the week on/week off arrangement as before, with the father making decisions on education. The mother would make decisions on health care and religion in consultation with the father.
Domestic violence is treated differently under the recent amendments
A point that did not factor so heavily into the court’s consideration in Springstead v. Springstead is the domestic violence that occurred between the parents just before their separation. Most recently, the Supreme Court made its first decision interpreting amendments made to the Divorce Act in March 2021. These new amendments recognize that the discovery of family violence is a critical consideration in determining the best interests of the child. Family violence includes “any violent or threatening conduct, ranging from physical abuse to psychological abuse.”
In Barendregt v. Grebliunas, the court pressed the importance of protecting children against family violence. In fact, avoiding abuse or the hostility one parent has for the other may actually be more important than spending more time with either parent. The court also acknowledged that even one incident of domestic assault can suggest a wider pattern of abuse.
Relocating? Contact the Family Law Lawyers at GDH Law in Vaughan to Assess Your Parenting Time Options
At GDH Family Law in Vaughan, our team of skilled family and divorce lawyers is dedicated to providing quality service to their clients, whether their matters are handled, in-person or remotely. We handle matters from separation and divorce to parenting time and decision-making. You can view all of our services here. If you have questions about whether your next family law appearance will be in-person, or your family law matter in general, please contact us online or call us at 416-535-6944 to schedule a free initial consultation.