Want to move with your children? You have separated from your partner and are pursuing a new love. Moving in seems logical. It’s the next step in the exciting life you are creating together. Or so it seems. What could happen if you have children might surprise you.

“AJ” and “Susan” met in high school, moved in together and married in 2005. They went off to college and university and settled into their careers. He worked at a wholesaler near their home. She travelled daily for her job. It seemed like a perfect union.

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Can You Move With Your Children?

Gradually, cracks appeared in the marriage. He suffered from depression and drank, mostly mildly to moderately. Occasionally, they got drunk together. Then, seven years in, she discovered the affair. His locked cell phone was the first clue. Over five months pregnant, Susan sussed out the password and broke in to discover AJ had been texting back and forth to a girlfriend. The emails were explicit or so she said.

Distressed but determined to break it off, Susan left their home and moved in with her siblings. Four months later, she gave birth alone at a nearby hospital. Although Susan called her former husband to meet here there, hospital security ushered AJ off the grounds after he argued with her mother.

A Child Born After Separation

AJ claimed the pregnancy was unplanned. But Susan said he was fully aware she planned to have a child. The infant, “Lizbeth”, was healthy and happy and lived full-time with her mother. In court, the couple agreed on access, with AJ and Lizbeth having day and overnight visits, increasing in duration as the infant matured. AJ visited his daughter on average 90 minutes a week, dropping by Susan’s mother’s apartment in his hometown.

As anticipated, AJ’s visits became more frequent as Lizbeth became a toddler. By May 2014, AJ’s access was expanded to six of every 14 nights, from Tuesdays after daycare to Thursday mornings and alternate weekends.  The access order was finalized in September 2014.

Although AJ initially reneged on child support payments (due to simply not having the money, he said), he eventually began paying. He was catching up slowly on the arrears and contributing 40 per cent of Lizbeth’s daycare costs.

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Move With Your Children

Five months later, Susan announced she was moving that summer. She was engaged and her fiancé owned a farm 20 minutes south of her current home. AJ’s commute to pick up Lizbeth would now be 3.5 hours, twice a week. AJ objected. Going back to Ontario Superior Court of Justice (ONCJ), he sought sole custody of Lizbeth or, failing that, an order restricting how far away she could be moved.

AJ claimed Susan had been dating when they signed the access order in September 2014 and could have told him then. That might have changed what he agreed to. He had been “duped” and “tricked”, AJ told the court.

Read more: What Happens to the Matrimonial Home in Divorce?

Opinions on what was in the best interests of the child were many. Besides Susan and her sister, the fiancé, “Brad”, and his sister were in court. Lizbeth’s daycare supervisor was offered a chance to speak. As were AJ, his by now common law partner and former girlfriend, “Chandra”, and her mother. Chandra’s former husband and AJ’s father rounded out the group.

The Family Weighs In

At trial, AJ admitted he had not told Susan when he moved in with Chandra in 2013. As he described it, Lizbeth enjoyed her stays with her new, blended family. The couple had a yard for her to play in and a dog. Chandra’s two daughters, 11 and 13, got along famously with Lizbeth. AJ and Chandra had their own daughter, born in 2015, and another infant on the way.

Susan’s ex also confessed that he had not helped her with baby supplies, despite which, six months after Lizbeth’s birth, he and Chandra had gone to Las Vegas. His parents paid for the trip, he said. Further, AJ wanted court costs ordered against Susan to be paid to him in full, instead of using the money to reduce child support arrears.

Chandra testified her daughters would be “devastated” if Lizbeth moved away. She reported AJ was an excellent and attentive parent, who drank mildly but not to excess. Her ex-husband was comfortable with the arrangement and told the court he agreed that Lizbeth and his daughters were very close, as did Chandra’s mother. AJ’s dad was positive. He and his wife visited Lizbeth a couple of times monthly.

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What The Ex-Wife’s Family Said

When Susan testified, she was satisfied AJ was a good father and tried hard. Although initially worried about his drinking, she conceded it was no longer an issue. In her defence, she said her relationship with Brad had been in its early stages in September 2014 when the access order became final. She didn’t mention how serious their relationship was becoming until Brad proposed in February 2015.

While her new home would be further from AJ’s residence, Brad’s livelihood depending on him staying on the farm. Susan was confident Lizbeth would adjust well to life there. Brad had nieces and nephews and a large extended family who had welcomed Lizbeth in. Brad’s and Susan’s sisters were positive about the move. Susan proposed to drop off Lizbeth at a midway point for her weekly visits with AJ. The location was about a 90-minute drive each for Susan and AJ.

The Court Makes Their Decision

Some basic issues are at the heart of custody and access decisions. ONCJ considers:

• existing custody and access arrangements and the relationship between the child and both their custodial parent and the parent with access;
• the desirability of maximizing contact between the child and both parents;
• the child’s view;
• if it affects their ability to meet the child’ s needs, the custodial parent’s reason for moving (but otherwise, not);
• disruptions to the child if custody is changed; and
• how disruptive it would for the child if they were removed from family, schools and community.

In the child’s best interests

Lizbeth was lucky. Susan was a loving, caring parent and the judge had no concerns with allowing her to move. AJ had a close relationship with Lizbeth and despite the move, would still have frequent access. Susan and AJ already lived in different communities, meaning Lizbeth had to commute to be with either parent. Starting school already meant Lizbeth would have less time with her father, but the court found moving to the farm was in the child’s best interests. It would give her a better standard of living. Since Lizbeth had lived with her mother since birth, switching custody to her father would be more disruptive.

Lizbeth was too young to give her point of view. But both parents said she was happy and well adjusted. Although not what AJ asked for, dividing the drive between the parents alleviated some of his concerns.

If your ex wants to move your child, call ClearWay Law’s 24/7 law firm hotline at 1-844-466-6529 or email info (at) clearwaylaw.com

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