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Shared Custody and Parental Relocation: What Are the Rules?
Context to Better Understand the Rules of Shared Custody
Marine and Jean lived together for five years in Montreal. From their union, they had a daughter named Léa. In October 2017, the couple decided to amicably separate and adopted a shared custody arrangement in the form of alternating weeks with each parent.
In October 2019, Marine wishes to move to Abitibi-Témiscamingue, her hometown, to return to live near her parents and relatives. Furthermore, her uncle Sylvain offers her a job as a legal assistant in his law firm in Val d’Or, with several social benefits.
Since shared custody could not be possible due to the distance, Marine asks Jean to modify the custody arrangements for their daughter, who was four years old at the time. Specifically, Marine seeks exclusive custody of the child and proposes extended access rights during the summer holidays and pedagogical days to Jean.
Jean vehemently opposes this since he cannot imagine not seeing his daughter for such a long period.
Léa’s parents then decide to initiate legal proceedings to decide on custody.
What Law Applies in Such Circumstances?
Our courts have long deliberated on the criteria applicable to a request for modification of a minor child’s custody, particularly following a parent’s desire to relocate a distance where shared custody becomes unfeasible.
Several landmark rulings provide clarity on the legal framework for such cases, including Gordon v. Goetz, Watson v. Watson, and MacCallum v. MacCallum.
These three judgments converge on specific criteria that can be summarized as follows :
Our courts have long focused on the criteria applicable for a request to modify a minor child’s custody, especially after a parent wishes to relocate to a distance where shared custody is not viable.
Several principle rulings help illuminate the legal framework in such instances, namely Gordon v. Goetz, Watson v. Watson, and MacCallum v. MacCallum.
These three decisions agree on certain criteria that can be summarized as follows :
First Step to Take :
Before even assessing the merit of the modification request, the court must ensure there has been a significant change (in our case, relocation) in the child’s situation since the last custody order or agreement between the parties. Thus, the court will only modify the custody or access order if there has been a change in the “resources, needs, or, in general, the situation of the child,” as taught by the ruling in Gordon v. Goertz.
Second Step to Take :
A change in circumstances is not enough. We must demonstrate that the change fundamentally alters the child’s needs or the parents’ ability to meet those needs, as specified in the ruling Watson v. Watson. In other words, the question is whether the order would have been different if the current situation had existed then, as stipulated in the ruling MacCallum v. MacCallum.
Third Step to Take :
If the Court agrees that there indeed has been a significant change in a parent’s situation that substantially affects the child and this change could not have been reasonably foreseen at the time of the first order or agreement between the parties, then the court must examine the custody arrangements and decide which parent will be granted exclusive custody.
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