What happens if you have to relocate with children after a separation or divorce?

Moving is an inevitable reality that most everyone will have to contend with at some point. There are a lot of things you need to consider when you move, but a move is further complicated when are moving with children – especially if you are separated or divorced.
 
If you want to move with your children and this will impact the other parent’s rights with respect to the child(ren), there is a strong likelihood that the other parent will have something to say about it. Conversely, if your former partner intends to move away with your mutual child(ren), you will likely want to have a say in what happens.
 
While this type of issue may be resolved between the parents, seeing as moving does not leave much middle ground (you either move, or you do not), arriving at an agreement may be difficult. In the event that an agreement is not possible, the recourse for a moving parent is a “mobility” application in Court. Importantly, no move should be undertaken without consent of the non-moving parent or a Court Order permitting it.
 
As with most issues in parenting, the best interests of the child(ren) are of paramount importance, and any move should contemplate how the best interests of the children will be impacted. That being said, it is hardly a straight forward analysis to determine whether a move should be permitted. Indeed it can be difficult to determine what is ultimately in the best interests of the child(ren).
 
The leading Supreme Court case on the subject of mobility, Gordon v Goertz, lays out various factors that should be considered in any mobility application. Some of the relevant directions the Supreme Court gave in this case were that:

• There is no presumption for either parent. Notably, this was a break from the previous jurisprudence, which presupposed a presumption in favour of the custodial parent. Now, while the custodial parent’s wishes should be given “great respect”, the moving parent has to show why the proposed move would be in the best interests of the child(ren);
• Among other things, the following factors would have to specifically addressed in determining the best interests of the child(ren):
  1. The existing custody arrangement and relationship between the child and the custodial parent;
  2. The existing access arrangement and the relationship between the child and the access parent;
  3. The desirability of maximizing contact between the child and both parents;
  4. The views of the child;
  5. 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;
  6. Disruption to the child of a change in custody; and,
  7. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
      
     These factors have been given varied interpretation by lower courts, with different courts giving more credence to certain factors than others or even disregarding parts of the Supreme Court’s direction. Even the Alberta Court of Appeal has alternately emphasized and deemphasized the importance of the custodial/primary parent vs. access parent labels. What might be gleaned from this is that the custodial/primary and access parent labels may be helpful in some circumstances, but not all. More important than these labels, however, is the extent of the bond between the child(ren) and each of the parents. Ultimately, this means that there is not a one size fits all approach, and that any assessment of the best interests of the child(ren) has to be based on a fact specific inquiry.
      
     If you are the party who wants to move, among other things, you may want to consider the following:

• A move should not be a spontaneous decision, but one should make comprehensive plans and provide notice of those plans to the other parent as early as possible;
• Planning should be with respect to minimization of disruption for the child(ren) and address things like:
  • the employment opportunities for the parent at the destination;
  • what type of residence would be available;
  • the availability of school, with particular reference to any special needs of the child(ren);
  • the availability of amenities, with particular reference to any special needs of the child(ren);
  • the availability of childcare, with particular reference to any special needs of the child(ren);
  • the availability of healthcare, with particular reference to any special needs of the child(ren);
  • the availability of social support and extended family;
  • the wishes of the child(ren);
• You will need to characterize the nature of the child(ren)’s relationship with both parents and establish how bonded the child(ren) are to each parent; and,
• Provide a parenting plan that will maximize contact with the other parent and minimize the disruption of being away from that parent.

If you are party opposing the move, among other things, you may want to consider the following:
 

• You will want to emphasize your involvement in the child(ren)’s live(s);
• Depending on the child(ren)’s particular needs, you may want to contrast what is available in the proposed destination versus the community the children currently live in. You will want to emphasize the child(ren)’s connection to the community, and focus on things in the community like school needs, healthcare needs, friends, family, and involvement in extracurricular activities;
• You may have concerns about the destination’s suitability for the children generally;
• You may also want to highlight anything the other parent has done that could indicate an unwillingness to maximize contact between you and the children.

 
 
Dealing with relocation with the children and specifically mobility applications are very fact specific endeavors. If you have any questions with respect to potential moves with children, please contact one of our family law lawyers.

Michael Dugas

Michael Dugas is an Associate with Rowanoak Law Office LLP and practices in Family Law.