Mobility Rights And Relocation In Family Law

May 22, 2015

Change is a fact of life for all families, and this is particularly true in the area of family law when it comes to determining what will happen when the parent with legal custody of a child decides to relocate after a separation. There may be many reasons for a move, perhaps a new career, returning to family roots, or in order to facilitate new relationships. However if this move will have an effect on the other (non-custodial) parent’s access, it becomes necessary for the moving parent to obtain the agreement of the non- custodial parent or a court order that varies the current access arrangement.

Cases where parental relocation is at issue are among some of the most commonly litigated in family law as there are a number of important, competing interests at stake. While the courts have established tests and factors to consider in relocation cases involving relocation, outcomes are still often unpredictable.

THE LAW

The Supreme Court established the test for determining issues of parental relocation in family law almost 20 years ago in the case of Gordon v. Goertz. First, the threshold requirement of a material change in the circumstances of the child must be met in order for the court to consider the issue. After this is established, the best interests of the child are the dominant factor in making a decision.

While there is no presumption in the law, the custodial parent’s decision to move is to be given “great respect” in these circumstances, absent some indication of the motive being improper or directly affecting parenting abilities. Other factors the court is instructed to consider, include:

  • The existing custody arrangement and the relationship between 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;
  • The views of the child (where appropriate);
  • Any disruption to the child consequent on removal from family, schools, and the community to which he or she has become accustomed.

More recent cases since Gordon v. Goertz have indicated the following trends in decisions of the court:

  • The move-away parent should have a clearly thought-out plan that gives a court a picture of what the child’s life will look like if the move is permitted.
  • The child’s age may be a significant factor for not permitting the move in circumstances where the child has no capacity to express their wishes.
  • There appears to be increasing openness to the custodial parent wanting to move away to end or get away from parental conflict, especially where there is evidence of abuse or a controlling other parent.

 

LACK OF PREDICTABILITY

While the test from Gordon v. Goertz is a strong precedent, there is still an element of unpredictability in relocation cases due to the fact that each circumstance is unique. Therefore, if you are considering a move or contesting a move it is important to do everything you can to put yourself in the best position. This will include things like providing notice to the other parent, and a relocation plan or proposal for modified access.

THE IMPORTANCE OF NOTICE

There is consensus with regard to one aspect of relocation and that is notice. While there are exemptions from the requirement to give notice for some situations including those involving domestic violence, in most situations notice will be required. Notice is important for a couple of reasons and any parent who intends to change their address, whether or not they are the custodial parent, should give notice of the move and new address, as well as to make a reasonable proposal for any modifications to time with the child and access.

Proper notice in these circumstances is both common courtesy and good parental behaviour as it assists with the duty of both parents to maintain good parent-child relationships. Initial notice will not trigger immediate legal action, however may have a positive legal effect down the line as a proper notice and planning is looked upon favourably by the courts.

The converse is true in regard to unilateral moves, or moves made without notice to the other parent. The court does not look favourably upon unilateral moves and they are typically seen as a bad decision and an aggravating factor if the issue reaches the court.

HAVING A PLAN

One way to establish that moving, or not moving, is in the best interests of the child is to have a plan. If you want to move, be sure that you can provide the court with a well thought-out plan including job prospects, housing, childcare and schooling for the child. If you are the non-moving parent, be sure that you are prepared to provide a plan that shows specifically how the best interests of the child can continue to be served by staying in their current location.

In addition, both parents should be prepared to turn their mind to possible alternatives in these types of situations. These options may include a change in the primary parent, modifications to parenting time of the non-moving parent, or both parents making the decision to relocate.

Court decisions regarding the relocation of a child are largely fact-driven. This makes it difficult to predict outcomes for clients, as each case will have a unique set of issues and challenges. As a custodial parent considering relocating with your child, good planning, proper notice, and keeping your child’s best interests in mind should be your guiding principles.