Parental Relocation and Mobility Rights

By: Dayna E. Kwasney BA, JD

As our society becomes increasingly more mobile, the likelihood of parents residing in the same geographic region for the entirety of their children’s lives significantly diminishes. Some parents may desire to relocate for a number of reasons including better employment opportunities, a new relationship, or closer proximity to the child’s extended family.

Although the Courts cannot prevent a parent from moving, as mobility of citizens is a right guaranteed under the Canadian Charter of Rights and Freedoms, the courts can prevent a parent from moving with their child if the move would unduly restrict or conflict with the access or custody rights of the other parent. Indeed, relocation requests often generate significant conflict between parents, and frequently represent some of the most litigated court applications. This blog posting will attempt to outline the legalities of the relocation process, and what the applicable case law has to say in terms of how these applications are considered and decided.

The leading authority on the right of the custodial parent (i.e. the parent with whom the child primarily resides) to move with the child is the Supreme Court of Canada decision in Gordon v Goertz, [1996] 2 SCR 27. In that case, the Court set out a two-step process to be followed on any application for relocation:

1.   First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. Usually relocation itself will constitute a material change in circumstances, but this is not always the case. For instance, where a child lacks a positive relationship with the access parent, relocation may not affect the child sufficiently to constitute a material change in circumstances.

2.   If the threshold is met, the applicant parent must then establish that the proposed move is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. While the Supreme Court rejected a legal presumption in favour of the custodial parent, it held that the custodial parent’s views are nonetheless entitled to great respect. Each case will turn on its own unique circumstances, but the primary issue or focus of the court will be on the best interests of the child, not the interests or rights of the parents. In assessing the best interests of the child, the judge will more particularly consider:

a.  The existing custody arrangement and relationship between the child and the custodial parent;

b.  The existing access arrangement and the relationship between the child and the access parent;

c.   The desirability of maximizing contact between the child and both parents;

d.   The views of the child;

e.   The custodial parent’s reasons for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

f.    The disruption to the child of a change in custody; and

g.   The disruption to the child resulting from his or her removal from family, schools, and the community he or she has come to know.

While the best interests of the child remains the paramount consideration in any mobility application, the relevant case law remains unclear as to what precisely meets this requirement. Neither the legislation nor case law provide definitive guidelines to be followed by a judge when embarking upon a best interests of the child inquiry in consideration of a relocation application. As a result, knowing how the court will rule on any particular application can be hard to predict. Indeed, cases with similar facts can result in completely opposite rulings, with each judge assessing the best interests of the child in a different way. Moreover, determining what is in the child’s best interests can be extremely difficult where both parents have a strong, close relationship with the child.

Because each case is different and outcomes can be difficult to predict, it is always best to first try and reach an agreement with the other parent if possible. If consent from the other parent can be obtained, both parents should then arrange how contact will continue between the access parent and the child. The new access plan should address such things as when and where access will take place, and who will be responsible for travel costs. It should be noted that the level of child support paid by the parent who remains behind may be reduced to compensate for extensive access costs. If a new arrangement can be successfully negotiated and there is a Custody or Parenting Order already in place, parents should have the Order altered (via a consent variation order) to reflect the new situation regarding access.

Despite the uncertainty that pervades this area of the law, there are some outcomes that are more likely to occur than others. While there is no legal presumption in favour of the custodial parent, if there is a significant degree of bonding between the moving parent and the child, with little day-to-day interaction on the other parent’s part, it is likely the court will permit the relocation (MacPhail v  Karasek, 2006 ABCA 238; RJF v CMF, 2014 ABCA 165). If the custodial parent moves without the permission of the court, especially in a shared custody arrangement, the judge presiding over the mobility application will likely view the action very negatively (King v Anderson, 2012 ABCA 363).

There is also a general consensus in the Alberta case law that a court should not consider whether a parent proposing a move with a child would relocate without the child in any event (RJF v CMF, 2014 ABCA 165; Sangha v Sandhar, 2013 ABCA 259). It is now well recognized that such an inquiry puts the custodial parent in a highly prejudicial and impossible situation: If the answer is that the parent is not willing to remain behind with the child, he or she looks like a parent who does not care about the child, but if the answer is that the parent would not move without the child, that undermines his or her request to move away. A court that poses such inappropriate questions and takes the responses into account when making its decision may find its ruling overturned on appeal (See Spencer v Spencer, 2005 ABCA 262).

The Liberal government’s recent proposed amendments to the Divorce Act contain significant changes to the law on relocation and are aimed at bringing much needed clarity and consistency to this area. Under these amendments, if there is a previous court order or agreement in place, and parents do not have substantially equal parenting time, the legal burden rests on the non-moving parent to prove that the move is not in the best interests of the child. If, however, parenting time is substantially equal, the burden rests with the moving parent to prove why the move is in the best interest of the child. In determining what is in the best interests of the child, the court will take into a number of factors including the reasons for the relocation, the impact of the relocation on the child, and the amount of time spent with the child by each person who has parenting time and the level of involvement in the child’s life.  If there is no prior order or agreement in place, the burden falls to the parties to the proceeding to prove whether the move is in the child’s best interests.

Importantly, the proposed amendments also include notification procedures, whereby parents who intend to change their place of residence are now obliged to notify anyone with parenting time and decision making responsibility of their intention at least 60 days prior to the move. If the move is opposed, the other parent must file a court application within 30 days of receiving the notice; failure to do so will be understood as tacit agreement to the relocation.

Parental relocation is one of the most unpredictable areas of family law, and as such, is in need of legislative reform. Because of this, navigating a mobility application can be extremely difficult for the average parent. It is strongly recommended that a parent seeking to relocate or challenge a potential relocation consult a family law lawyer for advice in this regard prior to making an application.

NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.