Mobility refers to the ability of a parent to move a child’s residence, whether it is within a city or to another city, province, or country. When parties with children are separated or divorced, they cannot simply relocate as they please, as doing so typically interferes with the access children are able to have with one parent. If a residential parent wishes to relocate, they must obtain either the consent of the other parent or court order. In the legal community, this type of court application is referred to as a “mobility application”. In most cases, the more significant the relocation the greater the impact on the existing parenting arrangement and, accordingly, the stronger your case in favour of relocation will need to be.
The risk a residential parent faces in relocating with the child(ren), without the consent of the other parent or court order, is the non-residential parent obtaining a court order for the immediate return of the child(ren) to the jurisdiction. If the residential parent did not also return to the jurisdiction, the child(ren) would ordinarily end up in the primary residential care of the former access parent. Over time, a new status-quo parenting regime could be established. As well, that sort of unilateral action of the parent wishing to relocate would be prejudicial to that party at such time as the matter was heard and ultimately determined by the court. In this case, it is always best to seek permission first rather than after the fact.
The primary factors the court considers in deciding whether to allow relocation with a child, away from that child’s place of ordinary residence are:
- the existing custody arrangement and relationship between the child and the custodial parent;
- the existing access arrangement and the relationship between the child and the access parent;
- the desirability of maximizing contact between the child and both parents;
- the views of the child;
- the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
- disruption to the child of a change in custody; and
- disruption to the child consequent on removal from family, schools, and the community he or she has come to know.