Unilateral Relocations – Don’t Do It! - LawNow Magazine

Unilateral Relocations – Don’t Do It!

Family Law ColumnWhen a family is in conflict, it can be tempting for one parent to want to get away.  This can be especially true in cases where a parent is struggling financially after a separation or, in cases of domestic violence, when leaving is part of a safety plan.  However, a unilateral relocation with a child can have detrimental consequences in the long run.

As has been reviewed in past Law Now columns, most parents are joint guardians of their child with the other parent.  This means that, unless a court has said otherwise, parents are required to make major decisions regarding their child together.  One parent is not free to relocate a child without the permission of the other parent or the court, even if they feel they have excellent reasons, including financial or safety reasons, to move.

I have come across many parents who have been in desperate financial circumstances in their home town and have left to where they have an available bed to sleep on or a job that pays. Until a court can hear all the evidence from both parents, it will not be able to make a decision about whether or not the relocation is in the child’s best interest.Others have fled to escape violence and seek support from family.  These parents have taken their children with them without first seeking the agreement of the other parent, or in defiance of the other parents’ opposition.  However, parents that relocate with children without the clear consent of the other parent, or without the court’s permission, are frequently ordered to return with the child pending a final determination of the matter. This is ordered notwithstanding the financial and emotional cost of returning.

Usually, a parent who has been left behind objects to the move, as it limits their time with the child.  And usually that parent will:

1) deny that a relocation was necessary (especially in cases of family violence as most people will not admit committing it) and/or;

2) will argue that even if the other parent relocates, the child should be left with them.

Until a court can hear all the evidence from both parents, it will not be able to make a decision about whether or not the relocation is in the child’s best interest.  It has been suggested that the very fact that a parent relocated unilaterally should be prima facie evidence that that parent is not acting in the child’s best interests. The move, in other words, backfires and is held against the parent. Unfortunately, the courts do not move very fast and it can take months, in some cases years, for a family to get to an appropriate forum, such as Special Chambers, or a trial where a court can make this kind of decision. Permission to move may ultimately be granted, and it often is.  However, the court must have the opportunity to make that decision.  Permission to move in the interim, before a final decision can be made, is rare and only granted in exceptional circumstances.

Mr. Justice Smith of the Saskatchwan Court of Queen’s Bench stated it this way in Ofukany v. Ofukany, 2009 SKQB 234:

Allowing one parent to relocate with the children completely changes the familial landscape of the access parent.  In my view, given the profound change such a move creates, the issues relating to that proposed relocation can rarely be satisfactorily weighed by affidavit evidence.  Only at trial can the issues and considerations be fully developed and considered.

Even if a parent does relocate unilaterally, but then complies with a court order and returns pending trial, the court often uses the premature move to deny the parent ultimate permission to relocate with the child.  It has been suggested that the very fact that a parent relocated unilaterally should be prima facie evidence that that parent is not acting in the child’s best interests. The move, in other words, backfires and is held against the parent.

In summary, a unilateral relocation by one parent with a child often ends up being more costly and sometimes dangerous (because the parent must return) and, when a final decision is eventually made, the relocation may be a factor held against that parent.

If a parent feels they truly have no other choice but to relocate, notwithstanding the court’s discouragement, many troubles can be avoided by providing the other parent with an address at which they can be reached in the event a court order is granted.  This address does not have to be the parent’s actual address but an address at which they will be notified if anything arrives; such as with a friend, support agency, or family member.  And, if the court in the home province grants an order, the parent should respond to it promptly, as the province to which they have moved will have few choices but to enforce it.

The best approach to relocation is for a parent to plan well in advance and seek the other parent’s, or the court’s, permission.  In financial emergencies, parents should access all possible community resources and seek out support orders.  In safety emergencies, parents should seek community and police assistance and protection orders.

 

Authors:

Sarah Dargatz
Sarah Dargatz
Sarah Dargatz has been practicing family law since 2009. She is currently a partner at Latitude Family Law LLP.
 


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