Relocation After Separation: How Courts Decide Mobility Applications
- Calgary Legal Team
- Oct 10, 2022
- 5 min read
Article Summary
When a parent with custody wishes to relocate with their children after separation or divorce, complex legal questions arise. Mobility applications—requests to vary existing parenting orders to permit relocation—require courts to balance children's relationships with both parents against the moving parent's legitimate interests. This article explains the legal framework courts use to evaluate these requests, the critical factors considered, and what parents on either side of a mobility dispute should know.
The Mobility Challenge in Family Law
Life rarely stands still after separation or divorce. Career opportunities, new relationships, extended family support, educational needs, or simply the desire for a fresh start can lead one parent to consider relocating. However, when children are involved and a parenting order exists, moving isn't a simple decision—it requires legal consideration and potentially court approval.
Mobility cases are among the most challenging in family law because they typically present a zero-sum situation. When parents live significant distances apart, shared parenting arrangements that worked when both lived nearby may become impractical or impossible. Courts must make difficult decisions that inevitably impact the child's relationship with at least one parent.
The Legal Framework for Mobility Applications
Before the court begins evaluating the merits of a proposed move, the applicant (the parent requesting permission to relocate) must establish a threshold requirement: a material change in circumstances since the original parenting order was issued.
A material change must directly affect the child and must not have been reasonably foreseeable when the judge made the initial order. While courts generally recognize that relocation itself constitutes a material change, they often scrutinize the reasons behind the proposed move to determine whether these reasons align with the child's best interests.
Once a material change is established, the court applies the "best interests of the child" test to determine whether to permit the relocation. This legal standard recognizes that in Canadian family law, it is the child who holds the rights and entitlements—not the parents. This crucial perspective shifts the focus from what parents want or need to what will best serve the child's wellbeing and development.
Key Factors Courts Consider
When evaluating a mobility application, courts weigh several important factors:
Parenting Arrangements and Contact Maximization
The court examines the existing parenting arrangement and places significant emphasis on maintaining meaningful relationships between the child and both parents. Courts generally recognize the value of children having regular access to both parents and consider how a move would affect this principle.
If one parent has been the primary caregiver with the other having limited or inconsistent contact, courts may be more inclined to permit relocation. Conversely, in situations of truly shared parenting, courts may be more reluctant to approve a move that would substantially disrupt this arrangement.
Disruption to the Child's Life
Courts consider the potential disruption a move would cause to:
The child's relationship with the non-relocating parent
Extended family relationships (grandparents, cousins, etc.)
The child's established friendship networks
Educational continuity
Participation in activities and community involvement
Cultural and religious connections
The younger the child and the less established their community ties, the less weight these factors may carry. For older children with deep community roots, these considerations become more significant.
Reasons for Relocation
While the parent's reasons for moving aren't the primary consideration, they are relevant insofar as they relate to the child's best interests. Courts generally view more favourably relocations that:
Enhance the moving parent's ability to provide for the child financially
Bring the child closer to supportive extended family
Provide improved educational or healthcare opportunities for the child
Remove the child from an environment with negative influences
Conversely, moves perceived as primarily motivated by the relocating parent's desire to limit the other parent's involvement may be viewed unfavourably.
Parental Cooperation and Attitude
The court assesses each parent's willingness to facilitate the child's relationship with the other parent. A parent who demonstrates a history of supporting the child's relationship with the other parent may receive more favourable consideration than one who has been obstructive or uncooperative.
The Child's Views
When age-appropriate, the court may consider the child's preferences regarding relocation. The weight given to these views typically increases with the child's age and maturity. However, courts are careful not to place the burden of this decision directly on children's shoulders, recognizing the potential for parent-child conflicts of loyalty.
Potential Outcomes in Mobility Cases
Courts have several options when ruling on mobility applications:
Approve the Move with Adjusted Access: The court may permit relocation while establishing a new access schedule that might include extended holiday visits, regular video calls, and specific travel arrangements.
Approve the Move with Conditions: The court might allow relocation subject to specific conditions, such as the moving parent covering travel costs for visits or relocating within a certain geographic area.
Deny the Move Outright: If the court determines the move would not serve the child's best interests, it may deny the application entirely.
Approve the Move but Transfer Primary Residence: In rare cases, the court might permit the parent to move but order that the child remain with the non-moving parent, effectively changing the primary residence.
Practical Considerations for Parents
For Parents Considering a Move | For Parents Opposing a Move |
If you're contemplating relocation with your children, consider these practical steps:
| If you're facing a situation where the other parent wants to relocate with your child:
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Navigating Complex Mobility Disputes
Mobility applications involve complex legal, emotional, and practical considerations. Having experienced legal representation is crucial whether you're seeking to relocate or opposing another parent's move.
The Calgary Legal Team has extensive experience with both bringing and defending mobility applications. Our family lawyers understand the nuanced factors courts consider and can help you present your position effectively while focusing on your child's best interests.
If you are considering relocation or facing a mobility application from the other parent, contact us for guidance tailored to your specific situation.
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