Child mobility involves the ability of a parent to move away from the other patent after divorce. Because moving with children can be important, the child mobility rights lawyers at Kahane Law Office are often asked: “Now that I’m separated, can I move?”
The First Steps to Moving With Children after Separation and Divorce
After separation or divorce, many people would like to move for a number of reasons, including a fresh start; however, it is not simple when there are children involved. It is important to be aware of the necessary steps if you are a parent of a minor child and are seeking to leave the jurisdiction in which the other parent resides. This is called child mobility. They very first step when moving with children is to seek consent of the other parent. If communication is strained, mediation is a recommended option. It is good to have open verbal communication, but it is also important to have a written request and a written response. If you decide to move without the consent of the other parent or without the court’s approval, you could be subject to a court order requiring you to return to the jurisdiction that you left, or face losing custody of your children. You move with kids without consent of the courts, you can also be charged with kidnapping in certain situations.
What If the Other Parent Does Not Allow You to Move With Your Children?
If the other parent does not consent to the relocation, you will need to begin the process of seeking the court’s approval by way of an application. This is important prior to moving with children. Child mobility or relocation applications often become complex and will require a domestic special chambers application at a minimum, and possibly a trial. In any event, the process will take several months so you should plan ahead.
In 1995, the Supreme Court of Canada made a decision with respect to a mobility application, providing factors for consideration in a request for relocation. In Gordon v. Goertz (1995) R.F. L. (4d) 177 S.C.C., the mother, who was the custodial parent, sought to move to Australia with the child, and the father opposed. In the end, the SCC upheld the trial court’s decision to allow the mother to move. However, it is important to rely not on the ultimate decision in this case, as much as the analysis and factors when deciding if the court will allow moving with children.
What Factors Are Looked at In Child Mobility
The first thing the parent seeking to move has to prove is that the there is a material change in circumstances. If moving with children will significantly affect the access arrangement, then a material change in circumstances will be made out.
Once it is shown that there is a material change in circumstances affecting the child, the court must consider the best interests of the child, pursuant to the legislation. In Gordon v. Goertz, the SCC outlined the following factors for consideration when determining the best interests of the child:
- The existing custody arrangement and the relationship between the child and the custodial parent;
- The existing access arrangement and relationship between the child and the access parent;
- The desirability of maximum contact between the child and both parents;
- The views of the child (where age appropriate);
- The parent’s reason for moving only in exceptional cases where it is relevant to the parent’s ability to meet the child’s needs (this is often argued when one parent seeks to move for the support of extended family and better financial prospects, which affects the ability to parent the child. On the other hand, the opposing parent may point to the lack of a job or family support in the new community as a negative);
- The disruption to the child of a change in custody;
- The disruption to the child from removal from family, friends, and community (affects older children more than younger)
Therefore, if you are planning to move, it is important to put an appropriate plan in place, keeping the above factors in mind. If you are opposing another parent’s desire to move, it is equally important to consider the above best interest factors. In any event, be prepared for a complex litigation process, for which it is recommended to seek legal counsel.
Our Child Mobility Lawyers can Help When Moving With Children After Divorce
As a firm we pride ourselves on exceptional service. That is easy to say and more difficult to prove. In 2013 we were recognized by the Top Choice Awards as the Top Family Law Firm of 2013 in Calgary.
To schedule a appointment with one of our child mobility lawyers to discuss your options when moving with children, please contact our experienced team at Kahane Law Office. Call Today! You can reach us toll-free at 1-877-225-8817, 403-225-8810 locally in Calgary, Alberta or email us directly here.