Can My Ex Move Away With Our Child in Prince Edward Island?

Hearing that your ex wants to move, whether across the Island, to another province or farther away, can be frightening. You may wonder if they can simply go, or if you can stop them.

The answer depends on your existing order or agreement and on what is best for your child. This article explains the framework courts use. Notice requirements and timelines depend on your particular order and the law that applies, so a lawyer should confirm them for you.

This article covers the law of Prince Edward Island.

A move is a parenting question

A move changes how a child spends time with each parent, so courts treat it as a parenting issue. Prince Edward Island's Family Law Navigator describes parenting time as the time a child spends in the care of a parent, and decision-making responsibility as responsibility for significant decisions about a child's well-being, such as health, education, culture and religion, and major extracurriculars. The old terms "custody and access" are no longer used.

Parenting for unmarried and separated parents is covered by the provincial Children's Law Act, not only the federal Divorce Act. Which law applies to you can depend on whether you were married.

How a court decides

The factors below come from the federal Divorce Act, which applies to parenting orders made in divorce proceedings. The provincial Children's Law Act also covers parenting for unmarried and separated parents and has its own best-interests section, so ask a lawyer how it applies to you. Under the Divorce Act, the court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. It then considers factors that include:

• the child's needs, including stability
• the child's relationships with each parent, siblings, grandparents and others
• each parent's willingness to support the child's relationship with the other
• the history of care
• the child's views and preferences, weighted by age and maturity
• the child's cultural, linguistic, religious and spiritual upbringing, including Indigenous heritage
• each parent's plans for the child's care and ability to care for the child
• the parents' ability to communicate and cooperate
• family violence, and any relevant civil or criminal proceedings or orders

The court also gives effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests. This is not a presumption of equal time. A move that would greatly reduce one parent's time raises obvious questions under that principle, and a proposed new schedule is likely to be important.

Past conduct is not considered unless it is relevant to the exercise of a person's parenting time, decision-making responsibility or contact with the child.

Notice and objecting to a move

Whether your ex must give you written notice before moving, how long ahead, and what the notice must contain depend on the order or agreement you have and the law that applies. Check your existing order or agreement first, and have a lawyer confirm the current requirements.

If you object, generally you would want to say so promptly and in writing, keep communication calm, and avoid self-help such as keeping the child from the other parent. Judges look at each parent's willingness to support the child's relationship with the other.

If the two of you cannot agree, how the move is decided depends on your situation, so it is worth confirming with a lawyer. In a divorce proceeding, the Divorce Act makes the child's physical, emotional and psychological safety, security and well-being the primary consideration. If your case falls under the Children's Law Act instead, a lawyer can explain how it approaches this. A lawyer can also explain which forms and court apply to your case.

Safety concerns

Sometimes a parent wants to move because of safety. In a divorce proceeding, the federal Divorce Act says that when assessing family violence, the court considers its nature, seriousness and frequency, any pattern of coercive and controlling behaviour, whether the child was directly or indirectly exposed, harm or risk to the child, and steps taken to prevent further violence. If your case falls under the Children's Law Act instead, a lawyer can explain how safety concerns are assessed there.

If safety is a concern for you or your child, tell a lawyer right away, since it may affect how urgently and in what way you should act.

What to do next

• Collect your current parenting order or agreement and read what it says about moving and parenting time.
• Ask your ex in writing for the proposed move date, the new address and a proposed schedule.
• Write down how the child's school, activities, health care and family relationships would be affected.
• Prepare a realistic alternative schedule that keeps the child's relationship with both parents strong.
• Keep a record of communication and avoid arguments in front of the child.
• Speak with a family lawyer promptly, because the timing of a move can matter.

Frequently asked questions