Whether a Parent Has a Right to Move with a Child – The Concept of “Mobility” in Family Law
The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a custody and access schedule put in place. But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs. The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.
In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater. This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and – if so – what happens to the custody and access arrangements that are in place.
In family law, this is known as a “mobility” issue.
In Canada, courts generally recognize that the well-being of a child is fundamentally interrelated with the well-being of the custodial parent; indeed, a 1996 Supreme Court of Canada ruling in a case called Gordon v. Goertz established conclusively that judges must apply the “best interests of the child” test in making decisions about whether a parent should be allowed to relocate with a child, which in turn requires an individual, fact-specific assessment. As the court put it:
“The focus is on the best interests of the child, not the interests and rights of the parents.”
Courts are required to make a “full and sensitive” inquiry. This means that they are obliged to take into consideration a vast array of factors, including:
• the existing custody arrangement and relationship between the child and the custodial parent;
• the existing access arrangement and the relationship between the child and the access parent;
• the desirability of maximizing contact between the child and both parents;
• the views of the child;
• the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
• the disruption to the child of a change in custody; and
• the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
It is worth pointing out that in making this assessment, there is no presumption in favour of either parent (whether the custodial parent or otherwise).
Incidentally, the authority for a court to make such a determination on behalf of parents and children is set out in various provincial and federal family-legislation. Under the federal Divorce Act, for example, provides that if a court gives one parent custody of a child, the court may also require that parent to give at least 30 days’ notice to the other parent of any planned change of residence of the child (although practically speaking, most orders specify a 60-day period). The access parent, upon receiving such notice, can apply to the court to challenge the proposed change of residence, or seek a variation of the custody or access arrangements; this notice period also afford the parents the chance to negotiate acceptable relocation terms, before it happens.
When mobility issues arise, it is important to get experienced and competent legal advice, to ensure that the best interests of all parties – particularly the children of the relationship – are safeguarded.
