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Mobility Rights – What’s the Test?

March 23, 2018

The term “mobility” is used in family law to describe circumstances when one parent wants to relocate to another jurisdiction with the children. Practically speaking, this means that one parent (usually the primary or custodial parent) is attempting to relocate with the children, the result of which would likely be that the access parent will have reduced time with the children. As a result of the interference of parenting time that the proposed move may cause, this area of family law is often heavily litigated as it is hard to find a ‘middle ground’ for settlement.

There are many reasons why parents consider leaving their current jurisdiction: a new job, a new partner, or the desire to move closer to where their family and support system is. Whatever the motivation may be, the Court will focus on the best interests of the children in considering whether or not to permit the relocation. The Court will consider various factors in making the determination of what is in the children’s “best interests”, including: the relevant circumstances of the child, the existing residency and custody arrangement, the desirability of maximizing contact between the children and both parents, the views of the child (if they are of sufficient age), the custodial parents reason for moving, and the disruption the move may have on the children. The leading case in mobility issues is the Supreme Court of Canada decision of Gordon v. Goertz, which sets out the test for the Courts to consider in making a determination regarding mobility.

It is important to note that Gordon v. Goertz is the result of a decision made at trial and not on an interim motion. This is an important distinction given that many parties would like to move with the children prior to a trial being held. The leading case regarding interim mobility motions is Plumley v. Plumley from the Ontario Superior Court which set out the factors for the Court to consider on an interim mobility motion. The decision provides that the Court should consider the status quo that is in place and be mindful of disrupting same at an interim motion unless there are compelling circumstances for the Court to make a decision at the interim stage. As a result, the onus of proving the move should occur before trial is much higher for the custodial parent at an interim stage in the proceedings.

Given that the Court has wide discretion in determining what is in the children’s best interests, mobility cases are often unpredictable and there is no guarantee of success. The parent proposing the relocation should ensure that they have a plan to maintain as much contact as possible with the parent remaining in the current jurisdiction, this includes: telephone, Facetime and Skype access, greater periods of time over the holidays and what access will look like if the access parent comes to the new jurisdiction. It is important to have a plan before the court that addresses the proposed access if the children are permitted to move that provides as much detail as possible for consideration such as who will be responsible for the transport of the children.

Mobility issues can be both emotionally and financially draining and care must be taken to ensure that the parties are aware of the challenges they may face in proposing a move from their current jurisdiction. However, given that that world continues to be more global in nature, these cases are before the court on an increasingly regular basis and the decisions continue to be based on the circumstances of the particular case and on what the court hearing the matter deems to be in the children’s best interests.

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