In our last post, we talked about parental relocation and the legal issues that arise when a divorced parent wants to move away and take his or her child along to the new home, away from the community in which the other parent lives. This presents especially thorny issues when the parent who would be left behind has custodial rights or parenting time with the child that would be impacted negatively if the child moved away to live in another place with the other parent.
As we discussed, if the question of relocation is not controlled by a previous agreement or court order and if the parents cannot negotiate a new solution to the current issues posed by the proposed relocation with the child, the matter will end up in court.
When an Alberta judge considers a mobility application that proposes the relocation of a child’s residence away from the community of the other parent, the judge is guided by the important Supreme Court of Canada case of Gordon v. Goertz. In that case, the court affirmed the judge’s decision to allow a mother to relocate to Australia because it found the child’s best interest was best served by upholding the mother’s custody. However, the court held that the judge was wrong to limit the father’s access to the child to visits only within Australia and ordered that he be allowed to exercise his access to the child also within Canada, the place where extended family also lived.
The Supreme Court made several holdings controlling how Canadian courts are to assess relocation cases:
- The parent who filed the mobility application must show that there has been a “material change in the circumstances affecting the child.” This threshold question would eliminate a case from further consideration when the parent making the request is really trying to get an earlier custody order changed without an actual change in circumstances that would justify it.
- The judge must reconsider what the best interests of the child are now as compared to earlier findings, considering the needs of the child and the ability of the parents respectively to meet those needs.
- There is no legal presumption that the custodial parent has the right to move the child, but that parent’s “views are entitled to great respect.”
In our next post, we will continue our discussion of the Gordon factors.