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Family Law... Should I Stay or Should I Go? Moving with Your Child Post Separation or Divorce

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.

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 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.

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