The leading case on mobility rights is the Supreme Court of Canada's decision in Gordon v. Goertz. In that case, the Court decided that there was no legal presumption in favour of the right of the custodial parent to move. While the custodial parent has a right to decide where the child may live, that right is subject to the right of the access parent to apply for a change in custody once a material change in circumstances has been established. The goal of maximum contact with each parent under the Divorce Act is not absolute but should be respected to the extent that such contact is consistent with the best interest of the child; otherwise, contact should be restricted. If the child's needs are likely to be served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then custody should not be varied and the move should be permitted. Factors to be considered by the Court include:
1. parenting capabilities of and the child's relationship with parents and new partners; 2. employment security and prospects of each parent and, where appropriate, a partner; 3. access to and support of extended family; 4. difficulty of exercising proposed access and the quality of proposed access if the move is allowed; 5. effect on child's academic situation; 6. psychological and emotional well-being of the child; 7. disruption of the child's existing social and community support and routines; 8. desirability of the proposed new family unit for the child; 9. relative capabilities of either parent or their respective abilities to discharge their parenting responsibilities; 10. child's relationship with both parents; 11. separation of siblings; and 12. retraining or educational opportunities for the moving parent.
Here are some interesting statistics. The success rate for a custodial parent wishing to move is about 50%. The cases seem to suggest a strong gendered based element: the parent seeking to relocate is usually the mother. Custodial mothers appear to have the greatest chance of getting permission to relocate if they have sole physical custody, or there are substantiated allegations of family violence. Conversely, in cases where there has been joint physical custody (each parent has the child at least 40% of the time), a court is significantly more likely to deny the permission to relocate. The most common reasons for wanting to relocate are improved job prospects, followed by the mother wanting to move as a result of a new relationship and, finally, the mother seeking social and emotional support from her family. There are no significant differences in the success rate of these three categories of reasons for a parenting wanting to relocate with the child.
Permission to relocate is often very difficult to obtain on an interim motion, and such an order will only be granted in “exceptional circumstances.” As such, that usually means a trial, which can take a year or more before it is heard. Courts do not like parents who take the unilateral action of moving a child without the agreement of the other parent or approval of the Court. In other words, it is not a good idea to move first and ask permission later, with the following qualification. Sometimes these self-help remedies are successful when the access parent does not bring the matter to court to insist on the child's return, or he or she is slow to do so, thereby allowing a new status quo to develop.