Mobility refers to the ability of a parent to move a child’s residence, whether it is within a city or to another city, province, or country. When parties with children are separated or divorced, they cannot simply relocate as they please, as doing so typically interferes with the access children are able to have with one parent. If a residential parent wishes to relocate, they must obtain either the consent of the other parent or a court order. In the legal community, this type of court application is referred to as a “mobility application”. In most cases, the more significant the relocation the greater the impact on the existing parenting arrangement and, accordingly, the stronger your case in favour of relocation will need to be.
The risk a residential parent faces in relocating with the child(ren), without the consent of the other parent or a court order, is the non-residential parent obtaining a court order for the immediate return of the child(ren) to the jurisdiction. If the residential parent did not also return to the jurisdiction, the child(ren) would ordinarily end up in the primary residential care of the former access parent. Over time, a new status-quo parenting regime could be established. As well, that sort of unilateral action of the parent wishing to relocate would be prejudicial to that party at such time as the matter were heard and ultimately determined by the court. In this case, it is always best to seek permission first rather than after the fact.
The primary factors the court considers in deciding whether to allow relocation with a child, away from that child’s place of ordinary residence are:
- 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;
- the views of the child;
- 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;
- disruption to the child of a change in custody; and
- disruption to the child consequent on removal from family, schools and the community he or she has come to know.
As the primary consideration for the court in custody/parenting decisions is always the “best interests of the child”, the court’s analysis of these factors will be assessed with a view to what is best for the child(ren), overall. There is no presumption that a move that is in the best interests of a parent is necessarily in the best interests of any child(ren) in that parent’s care.
The existing custody/parenting schedule (often referred to as the “status quo”) is very important, as maximizing and sustaining contact between children and both parents is of primary importance to the Court. In that respect, a parent with minimal involvement in a child’s life may face greater challenges in seeking to restrict a residential parent’s relocation with the child, than a highly involved access parent may.
Be prepared to provide evidence to the court as to how the relocation will serve the child’s best interests, such as:
- Employment opportunities/income;
- Support system & extended family;
- Wishes of the child;
- In some cases, expert evidence (such as psychological assessments).
This is a particularly pertinent issue in Alberta today, given current employment and economic circumstances. If you are a separated or divorced parent, and are considering a relocation, it is advisable for you to consult with a family law lawyer at your earliest opportunity.