They say two of the most hotly litigated areas in family law are mobility and spousal support, and no wonder! Decisions relating to whether or not a parent can move a child away from another parent are very fact specific, which means that it is difficult for the court and lawyers to rely on prior cases, resulting in decisions that are on a case-by-case basis.
Despite the individual approach there are factors that the court must consider in light of the unique circumstances of the parties before the court. These factors are listed in Gordon v. Goertz, a 1996 decision of the Supreme Court of Canada, and are as follows:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) 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;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
The overriding factor will always be the best interests of the child in the circumstances. This means that the focus is on the child and not the interests and rights of the parents. Because of this factor there is no longer a legal presumption in favour of the custodial parent.
It is important to deal with the issue of mobility in a timely way. If the issue arises during the negotiation of a Separation Agreement or Final Order have it addressed; coming back a few months later and seeking to change a formalized parenting arrangement will be more difficult than if it had been addressed in the first place.
Our offices have handled many mobility cases over the years, acting on both sides of the issue; we would be happy to discuss how your unique circumstances may be viewed by the court, please feel free to contact us.