Divorce/Mobility Rights
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Divorce - Mobility Rights
My former spouse has custody and has decided to move to another province with our children. Can she do this?
The right of the parent with custody to move (or be "mobile") and to take the children with him or her is called "mobility rights". Whether she can move to another province with your children depends on what sort of agreement you made at the time of the divorce and your specific circumstances.
Does a judge make the decision about mobility rights?
Not always. For the last few years, many agreements made by divorcing parents have specifically addressed the question of mobility rights. Your first step should be to review your agreement, if you have one, so that you are clear about what your agreement says about mobility rights. You may be bound by the agreement you signed at that time. If the agreement was made into a court order, you will only be able to change it with another court order. If the agreement was just between yourselves (no court order), you may be able to change it without going to court, if you both agree about the terms of the change.
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 your children and your former spouse, and your access arrangements can be changed to accommodate the new situation.
What if we can't reach an agreement about the proposed move?
If you can't handle this situation yourselves, then you should return to your lawyers for help in negotiating a solution. If a compromise cannot be reached, then you may have to apply to court and ask a judge to decide about the proposed move.
Many lawyers who practise in the area of family law, now practice Collaborative Family Law. These lawyers endeavour to work together for the good of their clients and to try to make the process less adversarial. For more information on 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.
How does a judge decide about mobility rights?
The judge might be asked to either give an order allowing the parent with custody to make the proposed move with the children, or by the access parent for an order preventing the move with the children. In a case involving mobility rights, the judge is being asked to reconsider the whole question of custody and access. The judge therefore considers first of all the "best interests of the child" rule — what is best for this particular family.
For an example of the kinds of matters taken into account by the courts, see the Supreme Court of Canada decision in Gordon v. Goertz.
What facts does the judge consider when deciding if a move is in the best interests of the children?
The judge considers
- the arrangements for custody and access that are already in place;
- how the children relate to each parent;
- what the children want 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 famiy members;
- the reasons why the custodial parent wants to move, particularly the financial reasons, such as taking a better-paying job;
- the reasons the parent opposing the move has for not supporting the idea;
- the advantages or disadvantages of changing custody to the access parent if the custodial parent is determined to move;
- any other factors that are relevant to each particular family.
If the move is good for the parent with custody, why wouldn't the judge let him or her just go?
The judge will give importance to the views of the parent with custody who wants to move. 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 children's best interests in mind. But the access parent's relationship with the children is very important too and must not be easily pushed aside. However, the judge's concern, first and foremost, is what is in the best interests of the children and not what either of the parents want.
What happens about mobility rights if the parents have joint custody of the children?
Joint custody is an important factor for the judge to consider. Parents with joint custody have joint decision-making powers about all important matters involving the children, including where they will live. A court application means that their ability to make joint decisions has broken down. The judge will have to decide, but he or she will look very carefully at the reasons for the move and the effect on the parent who is being left behind by the move.
This page was last updated in June, 2006.
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