One of the most contentious issues in family law is when one parent wishes to move to a different location with a child and the other parent is opposed to the move. This is actually one of the most difficult issues to litigate in family law and there is often very little middle ground for settlement as one parent has very compelling reasons for wanting to relocate with their child while the other has very compelling reasons for wanting the court to disallow the move.
The one thing that family lawyers and judges tend to agree on in this area is that every case is unique and fact specific. It is next to impossible to advise clients on a general level about when a parent will be permitted to move with their child and when they will not. This is because, as I said above, the case law is diverse and every case turns on its specific facts.
One observation that I can make is that courts tend to favour the status quo and in the absence of compelling evidence, will prefer that the status quo continue as long as it appears to be working well for the child. This is not to say that there is a presumption in favour of the status quo, but that the parent seeking to move with the child will have to offer evidence that the move will be beneficial to the child, beyond mere speculation.
According to the Supreme Court of Canada, a judge deciding a mobility application must consider the following 7 factors:
(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.
These factors are not the only factors that may be considered. Courts must take into account all available evidence. In addition to the 7 factors mentioned above, I would recommend that the parent seeking to move provide evidence of the following:
(a) how to include the other parent in the life of the child once the move is made;
(b) which new school the child will attend, along with evidence of specific programs offered at that school and why it may be better than others;
(c) what extracurricular activities the child is expected to participate in;
(d) what childcare arrangements the moving parent will be using (assuming that they will not be a stay at home parent;
(e) the support network of family and friends available in the new area;
(f) if the purpose of the move is to be closer to a new spouse or partner;
(g) the cost of living under the new circumstances and how the moving parent expects their finances to work out;
(h) whether or not the moving parent has the means to carry out the plan (i.e. pay for the move, pay for new accommodations, find a job in the new area etc.); and
(i) whether there is employment available in the new location (having an open offer of employment would be preferable to promising to search for work).
Again, these factors are also not meant to be exhaustive but would be helpful for any parent seeking to move with their child.
I personally think that courts should be more flexible with respect to the primary parent’s need to relocate. The primary parent (i.e. the one who has day-to-day care of the child) will see circumstances change in their life and will need to move on. They usually have more skin in the game so to speak and I feel that it is unfair for parents to be unnecessarily constrained by the convenience of the access parent.