Note that answers given in this section cannot take the place of a divorce lawyer. For legal advice about your specific situation, you must consult a qualified lawyer. See our disclaimer.

"My wife wants to move the kids from Toronto to Vancouver. Can I stop her?"

The answer depends on whether there's a separation agreement between the parties in place. If the parties have separated and there's a separation agreement that provides that one party must take certain steps before trying to move or relocate with the children, those steps have to be followed. Even so, however, that does not mean that a court will not allow a spouse to relocate. In order for a spouse to get permission from a court to relocate, the person who wants to relocate has to show the following things to the court. They have to show that the move would be a material change in the child's life, and that the proposed move would be in the child's best interests. Most of the time, the courts find that a significant change in location is material, and so the focus is on whether the change is in the child's best interests or not. Generally, the courts consider six or seven factors when deciding this. They first look at the relationship that the child has with the person who has custody of the child. They look at the custody arrangements and the relationship between the child and the access parent. They try to ascertain the child's views as to whether or not the child wants to move away and whether those views are independently held or are, perhaps, somehow manipulated by one party. They look at the disruption caused on the child that will ensue if the child is moved or not. They basically put all these factors together and come up with a judgment as to whether or not it's in the child's best interests to move.

Two quick points on this. First of all, some judges like to say that it doesn’t really matter whether you have joint or sole custody. But when dealing with relocation issues, parties who have joint custody have much more success in stopping a proposed move, than cases where it's just sole custody in favor of one parent. Secondly, courts generally will not allow a parent to move on a temporary basis when a custody case just starts. For a relocation to be approved by the court, it has to go through the entire process, usually with an assessment, and a trial. So a wife who wants to just pick up and move is going to have a very hard time convincing a judge of that on a temporary basis and usually will have to wait for a long and extended battle to get that approval, if it's going to be granted.

Brahm Siegel is a partner in the law firm of Nathens Siegel, a Toronto firm that restricts its practice to divorce and family-law issues. He is the consulting editor of the McCarthy Tetrault Guide to the Family Courts. He can be reached at (416) 222-6980. View his firm's Divorce Magazine profile.

Tuesday, February 14
at 8 pm to 8:30 EST
Preparing for Divorce Mediation - 5 Steps of Negotiation Power to get what you want
Learn More

Listen to podcasts of previous TeleSeminars.