When one parent seeks a substantial relocation with a child and the other parent objects, the moving parent may be required to make a mobility application. Until recently, the Divorce Act, the legislation governing divorced spouses, was silent on the issue of mobility. The Courts have long relied on the Supreme Court of Canada decision of Gordon v Goertz, [1996] 2 SCR 27, which outlines the test that moving parent must satisfy before being permitted to relocate with a child. This common law test includes two steps: First, a demonstration of a material change in circumstances affecting the Child; Second, that the move is in the best interest of the child. Recent amendments to the Divorce Act have introduced new factors to consider with respect to the best interest of the child test, as well as added new administrative steps that must be complied with before a parent is permitted to relocate with children. Consideration for both the common law test and new Divorce Act provisions is required to fully understand what is required for a successful Mobility Application.
Material Change in Circumstances
Has there been a change in the condition, means, needs or circumstances of the child or in the ability of the parent to meet the needs of the child, which materially affects the child, and which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial parenting/custody order? This is often called the "threshold question."
Typically, a significant relocation itself would represent a material change in circumstances, as a relocation would inevitably impact the child's time with the access parent. If, however, the parent's move was contemplated at the time of the previous order, this may not represent a material change.
Until a material change of circumstances has been demonstrated, the best interests of the child are presumed to be satisfied by the existing order. If the Court finds that there has been a material change in circumstances, the Court must undertake a fresh inquiry into the best interest of the child analysis.
Best Interest of the Child (Common Law Test)
The Court in Gordon v. Goertz outlines the second stage of a Mobility Application analysis by stating "the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all of the circumstances, old as well as new?"
To answer the question outlined above, the Court must look at the factors outlined in Gordon v. Goertz. These factors are considered as follows:
a. The existing custody arrangement and the 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. Disruption to the child of a change in custody.
f. Disruption to the child consequent on removal from family, schools and the community he or she has come to know.
The Court must also give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. The Court in Gordon explains that the "maximum contact" principle, as it is often referred to, is a mandatory consideration but not an absolute requirement of a parenting arrangement (Gordon at paragraph 25). While maximum contact with both parents is presumed to be in the best interest of the child, there are circumstances such as substantial relocations where the child's interests are best met in arrangements that, in fact, reduce the amount of time with an access parent.
Best Interest of the Child (New Divorce Act Consideration)
Under the new Divorce Act, an extensive list of factors was added to the best interest analysis, including considerations for the child's age and stage of development, history of care, proposed parenting plans, and the nature and strength of the relationship between the child each of the parents. Further, the new Divorce Act adds a list of factors and procedures relating to relocation specifically, including:
the reasons for the relocation;
b. the impact of the relocation on the child;
c. whether the person who intends to relocate the child complied with any applicable notice requirement under the new Divorce Act, provincial family law legislation, an order, arbitral award, or agreement;
d. the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
e. the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
f. whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
To date, the interplay of the new Divorce Act and Gordon v. Goertz, has not been examined by the Courts. As caselaw has time to develop, we can expect further clarity on how the relocation provisions should be applied, including how much weight should be given to each of the factors.
New Procedural Consideration
Under the new Divorce Act, the moving parent must give at least 60 days' notice before the date of relocation and must include the expected date of relocation, the address of the new residence, and a proposal for how the non-moving parent can continue to exercise parenting time with the child after the move. The moving parent is authorized to relocate with the child if a) the relocation is specifically authorized through a court order, or b) the other parent received proper notice of the relocation and did not object.
If a parent, or person with parenting time with the child, objects to the relocation, they must respond to the notice within 30 days of receiving the notice in a form prescribed by the Divorce Act.
Parents Right to Move
Prior to the new Divorce Act coming into force, Alberta Court of Appeal in MacPhail v Karasek, [2006] AJ No 982, outlined the limits of what a court can and cannot require from a relocating parent. Emphasized in paragraph 44, the Alberta Court of Appeal states, "Canadians are mobile and the courts are not the arbiters of the reasonableness of every decision a custodial parent makes. Custodial parents cannot be held hostage to the place the access parent lives. Certainly, access parents are not. Moreover, it is not an option to conclude that a child's best interests are best served by both parties living in the same place any more than it is an option to consider that it is in a child's best interest that their parents remain together."
The Alberta Court of Appeal made it clear that it is not for Courts to decide that the status quo parenting arrangement is in the best interest of the child. In other words, the Court cannot decide that a parent should stay put to continue with the existing parenting regime. The parent is moving, or has already moved, and the question revolves around where and with what parent the child will primarily reside.
Conclusion
The new Divorce Act, is likely to bring clarity and structure to legal questions regarding mobility and relocation. The SCC decision for Gordon v. Goertz remains the leading case on the matter and should be interpreted in light of the extensive relocation provisions recently added to the Divorce Act.
Mobility/Relocation Applications can be very complex and require strict compliance with the procedural provisions now listed under the Divorce Act. At Family Central Law Office LLP, we can assist your mobility law matter whether you are seeking to move or whether you wish to obtain primary parenting following your co-parent's move. We can help to effectively manage the litigation process for you while working towards a cost-effective resolution. To learn more about the legal services we provide, please contact us today for a free consultation with one of our experienced family lawyers by calling our office at (587) 392-7970 or emailing info@familycentrallaw.com, or by clicking on our consultation page.
