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Posted on February 21st 2006 in Legal Articles

Mobility Rights of a Custodial Parent

Mobility Rights of a Custodial Parent

A major issue that many separated parents face is the desire of the custodial parent to move away with the children. Unless the parents are able to come up with a satisfactory compromise, the issue is likely to be resolved by the court.

Issues involving children are decided by considering what is in their best interests. In theory this is the standard to be applied when deciding whether the custodial parent will be allowed to move with the children. Practically speaking however, the issue, if it ends up before the court, is more likely to pit the reasons for the move against the access parent’s right to continue undisrupted access. For this reason, mobility cases are some of the trickiest family law situations.

The test to be applied in mobility cases was set out by the Supreme Court of Canada in 1996. That particular case involved a custodial mother who wanted to move to Australia to study orthodontics. She sought to take her 9-year old child with her, despite the close relationship she shared with her Saskatoon-based father.

The Court reiterated that since this issue involved children, the sole consideration was what was in the child’s best interests. The Court listed a number of factors to help determine what those best interests might be, including:
• the existing custody arrangement and relationship between the 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, although the judge is only obliged to respect it to the extent that such contact is consistent with the child’s best interests,
• the views of the child, assuming he or she is old enough,
• the disruption to the child of a change in custody,
• the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

In this same case, the Supreme Court stated that there is no legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect. The Court also concluded that so long as the proposed move is being made in good faith and not to frustrate or interfere with access, the custodial parents wishes will be given some deference.

Despite this seemingly clear direction from the Supreme Court, permission to move remains very much at the discretion of the presiding judge. And that discretion usually has more to do with the reasons for the move than with what may actually be in the best interests of the children. The following are two examples of mobility cases that have recently been decided in Ontario.

The Johnson/Cleroux Case
The parents’ child was five when the mother sought to move to Oakville from Ottawa to live with her new husband. Her application to move was turned down by the motion’s judge on the ground that the move would disrupt the child’s relationship with her father, that there would be an impact on her association with grandparents and extended family and a limit of her exposure to the Francophone culture.

However, the mother successfully appealed the decision. Unlike the motions judge, the Court of Appeal found it was in the child’s best interest to allow her to move with her mother. The factors that the appellate court considered included that the mother was pregnant, that both she and her husband would be unemployed if they moved to Ottawa, that the child had resided with the mother since birth, that the parties had agreed that the mother should have custody of the child and the expert evidence that the child would benefit from continuing to have her main home base with the mother.

The Young Case
The Youngs had three boys, under the age of ten. When the Youngs separated they agreed to a joint custody arrangement. However, when the mother was unable to find a job in the Ottawa area she secured employment in Cornwall, located an hour away. While she initially commuted to Ottawa on weekends, she ultimately sought to move the boys to Cornwall.

The mother’s application was successful and the father appealed. The Court of Appeal set aside the trial judge’s decision and ordered a new hearing. The Court of Appeal found that the trial judge had erroneously focused on the mother’s teaching job and the benefits that flowed from it, instead of the best interests of the three boys. The Court indicated that the children’s stability would be severely disrupted if they were to move after more than three years in Ottawa. The Court also found that allowing the move would undermine the co-parenting arrangement previously agreed to by the parties, by essentially making the father an access parent.

As you can see this area of the law is certainly not cut and dry. Whether you are the parent who wants to move or the parent being left behind, you should seek legal advice at the earliest opportunity. Nicola Savin and Jacqueline Peeters work in the area of family law and would be pleased to review your particular situation.