In family Law, mobility refers to the decision of a parent within whom the child primarily resides, or the parent that has legal custody or even factual custody of the child, to move with the child. The move must be far enough that it will cause interference with the other parent’s rights to contact, access and active participation in the child’s upbringing. A parent can bring an application to the court seeking to prevent the other parent from moving the child. These cases tend to be very specific based on the unique facts of the parties involved. However, there are a number of general points concerning mobility that the Supreme Court of Canada outlined in Gordon v Goertz[i].
The court’s first step when looking at mobility issues is to look at the move and determine whether it constitutes a material change in circumstances of the child since the last court order or agreement was made. This is a threshold condition that must be met before the court will evaluate the merits of any application to vary an order. If the move does not meet this threshold, then the analysis will stop right there and the parent can freely move. In order to determine if the threshold is met, the judge must be satisfied that:
- There is a change in the condition, means, needs, or circumstances of the child and or the ability of the parents to meet the needs of the child
- The change materially affects the child
- The change was not foreseen or could not have been reasonably contemplated by the judge who made the initial order
Once the judge is satisfied that these conditions have been met, they can then proceed to evaluate the mobility issues under an application to vary a previous order. The analysis after the threshold is met is conducted afresh, with a focus upon the best interests of the child. Both parents will bare an evidentiary burden of demonstrating the best interests of the child. There is no presumption in favor of either parent’s position. However, the custodial parent’s view will be afforded ‘great respect’.
In evaluating the best interests of a child in the context of a move, the judge should consider a number 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 need of the child
- Disruption to the child of a change in custody
- Disruption to the child consequent on removal from family, schools and the community he or she has come to know.
As the Supreme Court said in Gordon v Goertz, the ultimate question in every case is what is the best interests of the child in all the circumstances, old as well as new.
Moving with your children can cause serious legal complications after parents separate. If you have concerns about a move that either you’re planning on doing with your children or your spouse is planning, you should seek legal advice in order to alleviate your concerns. If need be, you can go to court and seek either the court’s permission, through a new court order, to allow the move. Or alternatively, the court can make an order enjoining your former spouse from changing the child’s residence. In either case, the lawyers at Dale Streiman Law LLP can help you. They have years of experience handling family law matters, especially issues surrounding custody, access and mobility.
[i] Gordon v Goertz,  SCR 27 available at http://www.canlii.org/en/ca/scc/doc/1996/1996canlii191/1996canlii191.html