Important considerations for relocating the residence of a child
A court will consider the best interests of the child as the main criterion in mobility cases. According to provisions in the Divorce Act
, the Childrens Law Reform Act
and relevant case law, a court will consider the following in coming to a decision on the relocation of a child:
- A child’s physical and emotional well-being;
- The distance of the proposed move;
- The applicant’s plan for the child’s education and maintenance;
- The disruption to the child consequent on removal from family, schools, and community;
- The child’s financial needs;
- The child’s religious and ethical upbringing;
- The parent’s understanding of the child’s needs;
- The child’s wishes;
- The benefit of keeping siblings together;
- The bonding between a child and his caregivers;
- The maximum contact principle (i.e. maximum contact with both parents is presumed to be beneficial); and
- Parental misconduct if it affects the child or that parent’s ability to care appropriately for the child.
If separation has occurred and one parent moves out of the home without the child, and either acquiesces or impliedly consents to the other parent relocating residence with the child, the parent in whose care the child remains has de facto
custody under s. 20(4) of the CLRA
. Once a parent has establish de facto
custody, a court will frequently find that it is not in the child’s best interests to disrupt or change a pre-existing arrangement, especially if long term de facto
custody has been established in favor of one parent.
What does this mean for a parent who does not consent to the other parent relocating the child’s primary residence? In many cases, it means take urgent
legal action. Where only a short amount of time has elapsed between the deliberate creation of a new status quo by one parent and the hearing of a motion for relocation of a child, the court will be more inclined to presume that a restoration of a previous successful status quo is appropriate (Kennedy v. Hull
 O.J. No. 4719). It is important to note, however, that urgent legal action is not appropriate in every mobility case.
Whether an urgent motion, an Application to the Family Court, mediation or simply negotiation should be relied on to resolve issues of access and custody, including a mobility dispute, will need to be determined on a case by case basis with respect to the considerations as outlined above. It is important to consult with a family law lawyer for guidance on the appropriate direction to proceed in resolving such issues.