Family Law...Interim Mobility

Bernard Thibault – May 2017

In September 2016, I wrote about Interim Motions(read What Happens Next After Separating).  Sometimes, legal issues arising as a result of a breakdown of a relationship need to be dealt with sooner rather than later.  Interim Motions get the issues before the court more quickly, to deal with the more urgent issues.  Relocating with children can be a very urgent issue, requiring immediate attention.

Relocation of children is more commonly determined at a final hearing or trial.  A colleague of mine wrote about relocation sometime ago, where she provided a useful list of factors that the court will consider when determining if a relocation is in the best interests of a child (read Relocating with Children after Separation or Divorce).  But will the court consider all of this when dealing with the issue in an Interim Hearing, and will this affect the likelihood of being permitted to relocate?

The answer to the first part of the question is no.  Parties to interim hearings usually come to the court with less information and evidence.  This is simply a function of how urgent the situation is.  It is tough to gather lots of evidence and information to present to the court when there is little time to do so.  This is part of the reason why courts are reluctant to make decisions at Interim Hearings, which result in big changes to a child’s life; they just do not yet have all the information.

The answer to the second part of the question is most definitely yes.  The likelihood of being permitted to relocate with a child at the interim stage of the proceedings are much less than if the court were dealing with the matter at a final trial.  The court will be very reluctant to permit relocation unless there are compelling circumstances such as, but not limited to, a financial benefit which will be lost if the matter awaits a trial.  The court will be very concerned about the disruption that relocation may cause for the child.  The court is also aware that if the move is permitted at such an early stage, it will strongly influence the final outcome at a trial.  Therefore, the court will exercise caution, especially since even more disruption may be caused in a child’s life if an interim order permitting the move is later reversed at trial.

This does not mean that permission to relocate will never be given.  It just means that more effort needs to be put into the planning stages of the move.  The court will want to specifically know the following from the moving parent:

  1. How contact will be maximized with the non-moving parent;
  2. What the views of the child are, if appropriate;
  3. The reason for the move, if relevant to the ability to meet the children’s needs (i.e. a job with financial benefits that are better than here and will be lost if the move is not permitted);
  4. What actions are being taken to minimize the disruption resulting from the child’s removal from family, schools and the community they have come to know.

Obviously, the non-moving parent will want to emphasize the opposite on each of the above factors and any other relevant information.

This type of application is usually an uphill battle for the parent wishing to make the move.  This does not mean you should not try, however.   Sometimes, there are situations which simply require the move.  It is the planning and presentation of that information which is of utmost significance.  At MDW Law, we are experienced in dealing with these types of applications.  Whether you are the parent wishing to relocate with a child, or the parent wanting them to stay, we can help you.  If you are faced with this situation, do not hesitate to call – time is of the essence!

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