Can I Move Away with My Children? Divorce Lawyer Discusses Mobility Rights
When parents separate or divorce, an arrangement for child custody and access will be put in place, either by agreement or court order. So long as both parents live in the same area, this arrangement protects the child continuing relationship with both parents. What happens when one parent wants to move away and change the principal residence of the child?
British Columbians are increasingly mobile and after separation or divorce, it is not uncommon for BC residents to move out of BC or out of Canada, whether due to economic needs, to be closer to extended family, or simply to rebuild a new life. In this post, our divorce lawyer will discuss mobility rights and the factors that must be considered when one parent wants to move away with the child after separation or divorce.
Mobility in relation to child custody and access
Mobility or “relocation” in the context of child custody and access refers to the decision of the parent with whom the child primarily resides (often referred to as the custodial parent or primary parent) to move with the child far enough away to interfere with the rights of the other parent with respect to contact, access and participation in the child’s lives.
Legal framework for mobility requests
Mobility requests are governed by the federal Divorce Act and BC’s Family Law Act, S.B.C. 2011, c. 25, Part 4, Division 6 (“Relocation”). The legislation sets out the legal framework, which has been interpreted and applied by the courts so that there is now a legal test and list of factors that must be considered where there is a proposed relocation. The leading case on mobility rights is the Supreme Court of Canada’s decision in Gordon v. Goertz,  2 S.C.R. 27 (S.C.C.), a family law case in which a custodial parent was permitted to move with the child from Canada to Australia.
Child’s best interests is the top consideration
The ultimate question in every case involving a mobility request is this: what is in the best interests of the child in all the circumstances, old as well as new? Each case turns on its own unique circumstances, but the focus of the inquiry must be the child’s interests, not the rights of either parent. There is no legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. The importance of the child remaining with the parent in whose care and custody the child has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, extended family, and community.
Initial hurdle on a mobility application
On a mobility application, 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. If the threshold is met, the judge on the application will then consider what is in the best interests of the child in light of all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
Factors for assessing the best interest of the child
Once the parent applying for a change in residence has discharged the burden of showing a material change in circumstances, both parents bear the evidentiary burden of demonstrating where the best interests of the child rest. In assessing the best interests of the child with respect to the proposed relocation, the judge should consider factors such as:
- 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. Family law in Canada recognizes and promotes the importance of a child having as much contact with each parent as is consistent with the best interests of the child. This is known as the “maximum contact” principle in the Divorce Act, s. 16(10);
- 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 needs of the child;
- disruption to the child of a change in custody; and
- disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
As discussed above, each mobility request case turns on its own unique circumstances and the only issue is the best interest of the child in the particular circumstances of the case.
Get legal advice on mobility rights from an experienced divorce lawyer
Valerie M. Little is a family lawyer who has been practising law for over 30 years. Ms. Little's practice is exclusively devoted to issues of family law in North Vancouver, West Vancouver, Burnaby, Coquitlam, New Westminster, Port Moody, Port Coquitlam, Maple Ridge, Langley, Surrey, Abbotsford. Ms. Little can advise you about mobility issues, and she is also able to apply her expertise and knowledge when it comes to other issues pertaining to custody, guardianship, access, child support, and other aspects of law as it pertains to children. No matter what family law questions or issues you might be facing, you will receive personalized individual attention and understanding at the office of Valerie M. Little. For more information about our law office or to schedule a consultation with our family lawyer,please call us today.