Ashley Donald – February 2019
As family lawyers, we regularly get asked, “Can I move with our child?” I have recently worked with a number of clients either looking to move or looking to prevent the child from moving with the other parent. The distance of the move has varied – to Bedford, Antigonish, Toronto, Victoria and overseas.
When a parent wants to move with his or her child and the other parent does not consent to the move, the matter is called a “mobility case”. Mobility cases are some of the most difficult for the courts and they are the hardest to resolve through negotiation.
Although we have had some success in settling these difficult cases, they often require a hearing to get a resolution. The reason these are so difficult is simple. The outcome is black or white. There is no middle ground – either the move is allowed or it is not. Understandably, parents find it hard to agree to let their child move to a new town or city, when that move will greatly impact their parenting time with the child.
As with all parenting decisions, the ultimate test for determining whether a child should move is the best interests of the child. Case law, and now the Parenting and Support Act, provide us with some direction as to what we need to consider when looking at whether a move is in the child’s best interests.
Cases like Gordon v. Goertz, Foley v. Foley, and Clark v. Saberi set out a number of factors to be considered, including:
- the existing custody arrangement and relationship between the child and each parent;
- the desirability of maximizing contact between the child and both parents;
- the age, maturity level, special needs and the views of the child (if the child is of an appropriate age to provide his or her views);
- 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;
- disruption to the child consequent on removal from family, schools, and the community he or she has come to know;
- the support of an extended family, uncles, aunts, grandparents, etc.;
- the willingness of a parent to facilitate contact with the other parent;
- the interim and long-range plan for the welfare of the children;
- the advantages of the move to the moving parent in respect to that parent’s ability to better meet the child’s needs; and
- the time it will take the child to travel between residences and the cost of that travel.
The Parenting and Support Act was amended two years ago to codify these factors, set presumptions and burdens of proof, and establish specific notification requirements.
Each mobility case will be analyzed on the specific facts of the matter, including the circumstances of the parties and the child. No one factor is more important than any other, and no one factor is determinative. If you wish to move with your child, it is imperative that you have a sound, well researched and thought-out plan for the child.
If you are considering moving with your child, and that move will impact the other parent’s parenting time, be sure to consult with an MDW Law lawyer.