The simple answer is no you cannot because the non-custodial parent may have
heretic time with the child to be relocated which would then get disrupted. Apart from giving notice which is required under legislation of relocation, the matter could end up in court.
Here is a brief analysis of principles from caselaw to summarize the law related to relocation:
The leading authority is Plumley v. Plumley, [1999] O.J. No. 3234. Justice Marshman sets out the following considerations at para 7:
"It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:
1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
2. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at a trial.
In P.I. v. R.O., 2021 ONCJ 463, Justice Sherr summarizes the additional principles emerging from temporary relocation cases:
34 The following are additional principles regarding temporary relocation cases:
a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move.
b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed.
c) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. In such cases, the court requires a full testing of the evidence.
d) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result.
Analysis:
What the above propositions from the Court mean is that if the custodial parent wishes to move you have to analyze and ensure that before you go to court or before you relocate, you fulfil the principles mentioned above.
Similarly, for the non-custodial parent who is challenging the relocation the above principles are very important pick up. The non-custodial parent then does exactly the same thing: analyze and write down all the ways in which the above principles are not being fulfilled by the custodial parent.
So when presenting this to Court during arguments, it’s just a question of careful analysis that is being presented as a result of the hard work done in looking at each principle and detailing how it is either fulfilled or it is not fulfilled.
Our job as a lawyer is to represent either party that comes to us. We will help you do the analysis, to determine how best each principle is met or not met. If you don’t have a strong case we will tell you that transparently before going to court that these are your strengths or these are your weaknesses so that you are prepared for what is going to happen in court.
At Shankar Law, we look forward to welcoming you and serving you to the best of our ability. We have several physical offices in south west Ontario mainly in the Grey and Bruce regions but welcome cases from all over Ontario. We are here to help with your Family Law, Criminal Law and Real Estate matters.