Mobility Rights

Please note: These FAQs about mobility rights only apply to formerly married spouses who obtained a divorce under the Divorce Act. Because the Divorce Act is federal legislation, it applies across the country and is relevant no matter where you live in Canada.

If you were not married to your children’s other parent, then the family law legislation in your province will determine what your rights are with regard to mobility issues.  Many of the principles will be the same.  For instance, all provincial court judges dealing with family law cases abide by the principle of the “best interests of the child” in making decisions about mobility rights. For further information, you should consult a family law lawyer or access legal information resources in your province.

My former spouse has custody of our children and has decided to move to another province. Can she do this?

The right of a parent with custody to move and take the children with him or her is called “mobility rights”. Whether your former spouse can move to a different city or province with your children depends on what sort of agreement that you made at the time of your divorce and your specific circumstances.

What steps should I take to deal with my former spouse’s decision?            

The first thing that you need to do is to take a look at any agreements that you signed at the time of your divorce or any court orders about custody that a judge made. Review your agreement to see if it addresses mobility rights. You may be bound by what you have agreed to.  However, you can talk with your former spouse to see if you can work out a new plan.

Last reviewed: September 2016

What if there is a court order about mobility rights?

You need to read your court order carefully.  The Divorce Act specifically states that a custody order may include a term requiring the parent with custody who intends to change the place of residence of the children to notify the parent with access, at least thirty days before the change, or within a timeframe specified by the court:

  • the proposed change of residence;
  • the time when the change will be made; and
  • the new place of residence of the child.

Check your court order to see if it contains such a clause and if your former spouse has complied with it. If your court order does not contain such a clause, then you may need to return to court to seek a new order if you oppose the proposed move.

Last reviewed: September 2016

What if we didn’t sign an agreement or our agreement doesn’t deal with mobility rights?

If this is the case, then your next step is to talk about the situation with your former spouse to see if you can work out an agreement about the proposed move. Perhaps you will be convinced that the move is in the best interests of the children and your former spouse, and your access arrangements can be changed to accommodate the new situation.

Last reviewed: September 2016

 What kind of accommodations could I ask for?

It might be possible to work out an agreement where you have the children for half of all school holidays and an extended period in the summer. You might also agree to alternate major holidays such as Christmas and Easter on a year to year basis.  Consider the use of technology to help you maintain contact with the children, such as regular talks on Skype or FaceTime. You might agree to buy the children cellphones so that you can call and text them regularly.

Last reviewed: September 2016

What if we can’t reach an agreement about the proposed move?

If you can’t work out an agreement yourselves, you may need to return to your lawyers for help in negotiating a solution.  Many family law lawyers now practice what is called Collaborative Family Law. These lawyers try to make family law situations less adversarial and work together for the good of their clients. For more information about how to find a collaborative family lawyer in your area, contact your provincial law society. The Federation of Law Societies of Canada website contains links to provincial law societies.

You might also consider hiring a mediator experienced in family situations to help you reach a resolution.

If you still can’t reach an agreement you may have to return to court to apply for an order from a judge about the proposed move.

Last reviewed: September 2016

What would such a court application look like?

Your former spouse might bring an application in court asking for an order allowing her to move with the children.  You would file documents in this application opposing the proposed move.  Alternatively, you could begin court proceedings asking for a judge’s order preventing your former spouse from moving with the children and she could oppose your application.  Either of you could begin these proceedings through your lawyers, or you could file the application and represent yourself.

Last reviewed: September 2016

How does a judge decide about mobility rights?

In a case involving mobility rights, a judge is being asked to reconsider the whole question of custody and access. Therefore, the judge will consider first of all what is “in the best interests” of the children; in other words what is best for this particular family. For examples of what kinds of matters are taken into consideration by the judge, see the Supreme Court of Canada decision in Goertz v. Goertz.

Last reviewed: September 2016

What facts does the judge consider when deciding if a move is in the best interests of the children?   

A judge will consider factors like:

  • the arrangements for custody and access already in place;
  • how the children relate to each parent;
  • what the child would like to do, if they are old enough to be consulted;
  • the effect of the move on the children in terms of their schooling, extracurricular activities, and relationships with their friends and other family members;
  • the reasons why the parent with custody wants to move, particularly the financial reasons, such as taking a promotion or a better paying job;
  • the reasons the parent with access has for opposing the move;
  • the advantages and disadvantages of changing custody to the access parent if the custodial parent is determined to move; and
  • any other factors relevant to the particular family.
  • Last reviewed: September 2016

If the move is good for the parent with custody, why wouldn’t the judge let him or her just go?

Generally speaking, the parent with custody has the right to decide where the children will live and part of this responsibility is making decisions with the best interests of the children in mind.  Therefore, the judge will consider the reasons why the parent wants to move. But the access parent’s relationship with the children is very important too and must not be easily pushed aside. In fact, the Divorce Act specifically states that judges must give effect to the principle that children should have as much contact with each parent as is in the children’s best interests, and also to look at the willingness of the parent with custody to facilitate this contact. The judge’s first concern will always be what is in the best interests of the children and not what either of the parents want.

Last reviewed: September 2016

What happens with regard to mobility rights if the parents have joint custody of the children?

Under a joint custody arrangement, both parents must agree upon and be equally responsible for all major decisions concerning their children, including with whom and where they will live.  If you have a serious disagreement about where the children will live, it means that your ability to make joint decisions has broken down. You may need to hire a mediator to help you or return to court for a judge’s decision. The judge will look very carefully at the reasons for the proposed move and the effect on the children and the parent who is being left behind by the move.

Last reviewed: September 2016

Will a judge in a mobility rights case ask the children what they want to do?

It depends on the age of the child. A very young child will not usually have a say in the move, while an older child or teenager would probably be asked to provide their opinion.  As a general rule, children younger than twelve years of age would not be consulted.

Last reviewed: September 2016

What if my former spouse just moves with the children without consulting me?

Judges tend to take a very dim view of this behaviour.  Access is actually a child’s right to see a parent as much as a parent’s right to see a child.  It may be possible for you to start a court application to have the children returned to their original place of residence and custody changed to you. Certainly, the judge hearing an application of this sort will look very carefully at what has happened, why, and the impact on the children.

Last reviewed: September 2016

See Also

For more information, see: Moving with your Children (PDF)

 

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