Mobility rights is a fairly common and unpredictable area of Family Law. It is unpredictable because the court can decide either way based on just one consideration.

After separation, a parent may wish to relocate for a number of reasons including employment opportunities, new relationship or to be close to the extended family.

The courts cannot stop a parent from relocating. However, if the move would excessively limit access or custody right of the other parent, this parent can take the matter to court. The court may end up preventing the custody parent from leaving the jurisdiction with the child or children.

The Only Consideration For A Parent’s Custody Mobility Rights

The Divorce Act makes it clear that the “best interests of the child are the only consideration to be taken into account in making orders concerning children”.  In such cases the important question is “what is in the best interests of the children in the given circumstances?”.

How To Know What’s In The Best Interest Of A Child

The court must consider the following factors to make a decision whether a parent should be allowed to relocate with a child:

1. The importance of the child remaining with the custodial parent

2. Keeping contact with access parent

3. The views of the child

4. The degree of disruption to the child’s life as a result of removal from current family, schools and the community

2 Exemplary Cases Of Custodial Mobility Rights In Canada

1. Case of Gordon v. Goertz, [1996]

This has become the binding authority on related cases. Here, the mother wanted to relocate to Australia to study Orthodontics. The father opposed the move stating it would limit his access to the child.

The court first had to determine the “material change in circumstances affecting the child”. Upon establishing the material change in circumstances, the next stage is determining if it is in the “best interests of the child”.

In this case, the court allowed the mother to leave Canada with the child, while the father got order for visitations in Canada and Australia.

2. Case of Mam v. Wem, [2019]

In a recent case Mam v Wem, [2019], the Court had to determine whether it was in the best interest of the 15 year old daughter to temporarily relocate to China with her mother. The two older children of the marriage were also dependent and moving to China with their mother.

The position of the mother was that she had previously taught in Korea and she was familiar with the living conditions in china. She claimed that educational needs of her children can be satisfied by earning a decent living in China. Further, she believed the children will greatly benefit from new cultural experience.

In the end, the court denied the mother’s application for a temporary relocation after determining that it was not in the best interests of the children.

Since each case has it’s own unique peculiarities and circumstances, the outcome of your mobility rights case could go either way in the event that the other parent takes the issue to court.

It is important to get competent family legal advice to ensure that the best interests of all parties are protected if you are planning to custody parent planning to move with your child or children.

Satish Narang

Satish offers professional legal advice and experience drawn from a multicultural background. He has spent his years in practice supporting clients through their family law, business law, real estate law, immigration law and wills and estates matters. He is able to find innovative solutions for his clients thanks to his rich, diverse background, which allows him to examine clients’ legal problems from a variety of different perspectives.