One of the most contentious issues in family law is when one parent wishes to move to a different location with their children 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 children while the other has very compelling reasons for wanting the court not to allow 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 children and when they will not be. As stated above, this is because the case law is diverse and every case turns on its specific facts.
One observation that I have made 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 children. This is not to say that there is a presumption in favour of the status quo, but rather that the parent seeking to move with the children will have to offer evidence that the move will be beneficial to the children beyond mere speculation.
According to the Supreme Court of Canada, a judge deciding a mobility application must consider the following 7 factors:
- The existing custody arrangement and relationship between the children and the custodial parent
- The existing access arrangement and the relationship between the children and the access parent
- The desirability of maximizing contact between the children and both parents
- The views of the children
- 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 children
- Disruption to the children due to a change in custody
- Disruption to the children consequent on removal from family, schools, and the community they have 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, it is recommended that the parent seeking to move provide evidence of the following:
- How to include the other parent in the life of the children once the move is made
- Which new school the children will attend, along with evidence of specific programs offered at that school and why it may be better than others
- What extracurricular activities the children are expected to participate in
- What childcare arrangements the moving parent will be using (assuming that they will not be a stay at home parent)
- The support network of family and friends available in the new area
- If the purpose of the move is to be closer to a new spouse or partner
- The cost of living under the new circumstances and how the moving parent expects their finances to work out
- 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)
- Whether there is employment available in the new location (having an open offer of employment would be preferable over 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 children.
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 children) 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.