Mobility – The Right to Move

June 15, 2012

There are probably no areas in family law (or, at least, in regards to parenting issues) litigated more frequently than the issue of mobility.

The issue of mobility rights involves the question of a parent’s right to be able to move from his or her current jurisdiction with the children, to another jurisdiction. Most often times these cases arise when a parent who has primary residence of the children, wants to move to a different city.

There is a definite rise in the number of mobility cases before the courts; more and more Canadians are on the move. We live in a mobile society, where people are more acceptable of change, travel is easier, and employment transfers are more frequent.

Additionally, single parents seem to be more open to getting involved in new relationships with people who live in different cities, initially being willing to engage in a long-distance relationship, but ultimately wanting to be closer to his or her new partner.

At the time of separation, most parents will usually continue to reside in the same city, often within the same community. When they negotiate the terms of their Separation Agreement, they most often address the issue of mobility, by setting out a requirement that either parent is to give the other parent a certain number of days’ notice (for example, 60 or 90 days’ notice), in the event of a proposed change to the children’s permanent residence. This notification requirement is included within the Agreement in order to enable the parents to try to negotiate a new parenting arrangement, in the face of the proposed moved. It also gives the non-primary residential parent sufficient time to bring a court application to attempt to prevent the move, if a new parenting arrangement cannot be agreed upon.

I have seen some Separation Agreements where parents have agreed that there will be no move without the consent of both parties.  Such restrictive clauses , however, are unenforceable. The courts will not bind a parent to such a clause, in the event that it is determined, following the signing of the Separation Agreement, that it is no longer the children’s best interests to remain in their current location. Although the primary residential parent may have felt, at the time of the signing of the Separation Agreement, that it would always be in the children’s best interests that they remain in their current location, circumstances change and, later on down the road, it may be in their best interests to move. As with all parenting issues, the sole consideration for the court in determining whether to allow the proposed move, is the best interests of the child(ren). In other words, the court has to determine whether it is in the best interests of the child(ren) to move to the proposed location, or to remain where they are.

Given that it is a “best interests” test, the results are, understandably, unpredictable. A proposed move to a city three hours’ drive from the children’s current city may be denied in one case, whereas a proposed move to another continent, in another case, may be allowed.

The leading case in this field is the Supreme Court of Canada case Gordon v. Goertz, decided in 1996.

In Gordon v. Goertz, the parties lived in Saskatoon, and separated in 1990. In divorce proceedings, the mother was granted sole custody of the party’s only child, and the father was awarded generous access. Within two years of the custody order, the father learned that the mother was intending to take the child to live in Australia, where the mother was going to study orthodontics. His application for an order restraining the mother from taking the child out of the jurisdiction was dismissed, and the mother’s cross-application to vary the access provisions of the custody order to allow the move, was allowed. The order awarded the father generous access, but it was to be exercised only in Australia.

The father’s appeal to the Saskatchewan Court of Appeal was dismissed, and he appealed to the Supreme Court of Canada.

The father’s appeal to the Supreme Court of Canada was also dismissed and, therefore, the mother was allowed to move to Australia with the party’s child.

Every level of court in this proceeding was obviously aware of the fact that the child’s move to Australia would cause significant disruption to the access between father and child. However, the court found that the child had been in the mother’s sole custody for some years, and that a change in custody to the father would be highly disruptive for the child. Furthermore , the father had the means to travel to Australia, and, therefore, to some extent this would lessen the inevitable diminution of his access to the child.

The court held that, in the end, the importance of the child remaining with the parent to whose custody it become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all of the circumstances, old as well as new?

The court summarized the law in regards to mobility as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
3. The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia:
   1. The existing custody arrangement and relationship between the child and custodial parent;
   2. The existing access arrangement and the relationship between the child and the access parent;
   3. The desirability of maximizing contact between both parents;
   4. The views of the child;
   5. 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;
   6. Disruption to the child of a change in custody;
   7. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

It is important to note that, when the Supreme Court of Canada in Gordon v. Goertz refers to “custody”, they are referring to the actual residential arrangements, as opposed to the issue of major decision-making. Therefore, when a court is to consider the “existing custody arrangement”, this refers to the residential arrangements and not the decision-making arrangements. The primary residential parent who shares joint legal custody with his or her former spouse, will be deemed to be the “custodial parent” according to the Gordon v. Goertz analysis.

It should also be noted that Gordon v. Goertz is the result of a decision that was made after a trial of the issues, as opposed to an interim motion. This is an important distinction, given that primary residential parents will often times want to be able to move with the child immediately, rather than wait until after a trial many months down the road.

The law with respect to interim mobility is very different than with the issue of the determination of one’s right to move following a trial. The reason for the distinction is based on the court’s struggle with trying to determine what is in the child’s best interests, on the basis of affidavit evidence alone. At a trial, the court is able to hear from various witnesses, each one of whom is able to shed light on whether it is in the children’s best interests to stay where they are or to move to their new location.

The leading case on the issue of interim mobility is Plumley v. Plumley, an Ontario Superior Court of Justice case from 1999.

In Plumley v. Plumley, the court held that the following factors ought to be important on the mobility issue in an interim basis:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move, when there is a genuine issue for trial.
2. There have to be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.

In other words, the test on interim mobility cases seems to provide a greater onus on custodial parents, in that they need to either establish “compelling circumstances” justifying the move, or that there is a “strong probability” that he or she will be successful at trial. Where the court is struggling with this delicate balancing act at the motion stage, it is more likely that the judge will refuse the proposed move until a full hearing is dealt with on the merits of the case, after a trial.