Mobility Rights: Children Moving To Another Jurisdiction

Below is a nice article researched and written by Lyla Coyle. Lyla is currently studying as a legal assistant and is working with Thibault Jones Law on a work term. We asked her to research a case we did and write about mobility rights. It is a very well written article and can be very helpful.

If you or someone you know has, or is, affected by the issue of a child moving away from a parent, please do not hesitate to contact us and discuss your particular situation. 

 Mobility Rights

 An important issue regarding Family Law is the concept of mobility rights. In most situations, both parents are allowed the right to shared custody and access of their children. The location of the child should be one which is accessible to both parents. However, on some occasions, one parent changes locations, and makes it difficult and/or impossible for the other parent to have child visitation. A fair agreement between parents is joint and shared custody, where there is ample opportunity for both parents to take part in child care and rearing. When couples separate or divorce, oftentimes there is a lack of cooperation for this to take place. The negative feelings accompanying a divorce or separation further complicate and challenge joint and shared custody.

There have been numerous cases which document this situation; a precedent was made in Gordon v. Goertz, [1996]. The Court of Appeal Judge Saunders established a set of criteria which should be used to determine the permanent residence of the child. They are as follows:  

1.      The parent seeking modification of custody or access must first demonstrate that it is a material change in the situation of the child.

2.      If this threshold is met, the judge hearing the application must again determine the interest of the child, taking into account all relevant circumstances relating to the child’s need, and the ability of each parent to fulfill these needs.

3.       This analysis is based on the conclusions drawn by the judge who made the previous order and evidence of the new situation.

4.      The analysis is not based on a legal presumption in favor of the custodial parent, although it should be given great respect for the opinion of the latter.

5.      Each case turns on its own circumstances. The only issue is the interest of the child in the circumstances of the case.

6.      Emphasis is placed on the interests of the child, and not the interests and rights of parents.

7.      Specifically, the judge should consider including the following:

a)      The custody agreement already reached, and the relationship between the child and the custodial parent;

b)      The existing agreement on the right of access, and the relationship between the child and the parent who exercises this right;

c)      The desirability of maximizing contact between the child and both parents;

d)      The views of the child;

e)      Why the custodial parent moves out, only in the exceptional case where it has to do with the parent’s ability to provide for the child;

f)       The disruption to the child a change of custody would bring; and

g)      The disruption to a child’s removal from family, schools, and the community to which he has become accustomed.

This was the basis for future decisions in this matter. She stressed the importance of the existing agreement and /or judgment of custody and access, as well as the child’s preference and opinions. Additionally, the ideal situation is one in which both parents have access to the child.

These detailed criteria have become a precedent for cases relating to custody and access rights, with respect to the mobility rights of the parents. As noted above, a significant change in lifestyle must be established. If the change in the parent’s lifestyle does not affect the child, then it would not be considered a significant change in the child’s life. For example, a minor change in the parent’s lifestyle, such as a different car, or furniture, would not constitute a significant change in the child’s lifestyle.

The Family Services Act of Canada ensures that the best interests of the child are the criteria for which custody and access should be based upon. The child’s welfare must be the most important concern in determining custody and access. The child’s opinion should also be taken into account; which parent would he/she like to live with? What region in which does the child prefer to live? The best interests of the child also include the present and future opportunities for which the location will bring, such as stability of home environment, education, and extra-curricular activities. 

Furthermore, it is to be emphasized that each case is individual, and unique to any other. While sometimes it is beneficial to remain in the same environment, there are cases in which a move is beneficial, to provide income and/or security. A better job or more secure surroundings may require a change of location; in these cases, a move may be favorable to the child’s well being and happiness.   Each situation must be judged and assessed individually, with the greatest concern as the child’s welfare. Safety, love, and prosperity need to be of paramount importance in this decision. The child must be in a happy, healthy, and safe home environment, with stability, and opportunities for success and fulfillment. 

Lyla Coyle is a graduate from the University of New Brunswick, with a Bachelor of Arts in Psychology. Presently, she is completing a diploma in Legal Administration from Eastern College.

For more information on the Mobility Rights of a child, please contact our office at (506)849-0900 r visit our website at www.thibaultjones.com.

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