7.0 Mobility Issues
Mobility Rights - Can You Take the Kids When You Move?
By Joel Miller

On May 2nd, 1996, the Supreme Court of Canada issued a major decision in the Goertz v. Gordon case dealing with "mobility rights". The term "mobility rights" refers to the rights a custodial parent has to move to a different location and take the children with him or her. The court's decision is widely viewed as making it harder for that parent to move with the child than was previously the case. As the great majority of parents with custody are women, this decision is seen as creating hardships for mothers who want to move. While the law is equally applicable to mothers and fathers, this Comment will assume that it's the mother who has custody and wants to move.

There may be many reasons why a mother with custody of the children may want to move away from where she and the children have been living. Sometimes the reasons may be related to the difficulties she has been experiencing with the father and other times the reason may have nothing to do with him. Perhaps she intends to marry someone who lives in an other jurisdiction, or perhaps she is being transferred by her employer, or has been able to find a better job elswhere. Maybe she just wants to return to her home community and be near her family and friends. For whatever the reason, she may think that she has custody of the children and is free to move if she wants. She is wrong.

There aren't any cases allowing the mother to move with the child where the given reason was because she wanted to get away from the father or cut off his contact with the children. But there are many cases where the move has been allowed because it made sense for the mother and her life even though that decision had the same effect of cutting off the access by the father. There are many lawyers in Ontario who felt that the direction of the law concerning mobility rights was moving in the direction of allowing the mother to disrupt the contact between the children and the father if the move was justified and not motivated by improper motives. The issue has now been clarified and the Supreme Court of Canada has held that this is not the way to look at the matter. From now on, the court will look at each proposed move to see if it is in the best interests of the children and put the reasons for the move as a secondary issue.

The effect of the decision is that where the custodial parent wants to move he or she will have to satisfy the court that the move is in the best interests of the child and both parents will be starting from an equal positon. No preference will be given to the wishes or circumstances of the custodial parent. The court said that any legal presumption in favour of the custodial parent has the potential to divert a judge from seeing the true interest of the child. As any geographical move will now be treated as a material change in circumstances, the court is to reevaluate the custody issue in light of the fresh circumstances.

The majority decisiion of the Supreme Court makes it clear that, while the wishes and plans of the custodial parent do not have any special status, that parent nevertheless remains an important figure whose wishes must be carefully considered. In that regard the court said:

"The decision of the custodial parent to live and work where he or she chooses is entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability."

But the Supreme Court warned trial judges not to get sidetracked by the question of whether or not a geographical move proposed by the custodial parent was justified.

"All too often, such applications have descended into inquiries into the custodial parent's reasons or motive for moving. Parental conduct - however meritorious or however reprehensible - does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child."

The court also said:

"The judge will normally place great weight on the views of the custodial parent, who may be expected to have the most intimate and perceptive knowledge of what is in the child's interest. The judge's ultimate task, however, is to determine where, in light of the material change, the best interests of the child lie."

The Court is clearly aware that this decision will likely lead to more litgation on the part of non-custodial parents who feel they can establish that the move will not be in the best interests of the child, particularly when considering the community, family and friends the child will be taken away from. In response to this concern the Court said:

"The short-term pain of litigation may be preferable to the long-term pain of unresolved conflict. Foreclosing an avenue of legal redress exacts a price. It may, in extreme cases, even impel desperate parents to desperate measures in contravention of the law."

The decision of the 2 dissenting Judges put forward the argument that the rights of the custodial parent ought to be treated with great deference and not just regarded as a neutral factor. They felt that the original custody decision should be regarded as a major one and that any other decisions should flow from it. That view was not accepted by the majority.

The effect of this decision will be wide reaching. The cost of litigation, or the threat of it, may be such that a custodial parent may choose not to go ahead with the move or to make major concessions, including transferring custody, if he or she wants to move anyways. This will put some custodial parents into a real dilemma if the move is to live with a new spouse or accept a promising job transfer. (In an interesting analysis by Jeffery Wilson in his book Wilson On Children and the Law", he suggests that a custodial mother before Goertz stood a better chance of getting court approval for moving the children away from the father if the move was a return to her original home, to re-establish herself within her extended family or community or to join a married husband whose work had been re-located than she did if the reason for the move was because of an opportunity for a better job, a more promising career or the prospect of solidifying a permanent relationship.)

Nothing is new in focussing the concern of the court on what is in the best interests of the child. Now, however, there will be greater attention paid to the effects of a move on the child instead of whether the move is justified from the point of view of the custodial parent.

Another factor of significance is that the court will now look at what other changes have occured in the lives of all of the parties between the making of the custody order and the decision to move. Because opening up the matter will now have the court look at all of the new factors without giving any presumption in favour of the custodial parent, these new factors may tip the question of custody away from that parent altogether.

For example, at the time of the original custody order, the father may have been living with a new girl friend, or not yet in a home suitable for caring for the children, but may now be remarried with a second family into which the child could easily fit. That would not likely have been enough to cause a court to disrupt the "status quo" since separation and transfer custody, particularly if things had been going along well for the child with the mother. But if the mother wants to take the child to another city (province or country) to take up a new job or live with a new husband, the combination of factors may now suggest that the child's best interests would be better served by leaving the child with the father. The mother in that case will now have to consider whether is is even a good idea to try to get the court's approval for a move in these circumstances - or agree to transfer custody.

As with most other major Supreme Court decisions, it will take a while for trial courts and appeal courts in the separate provinces and territories to decide just how to apply the Supreme Court's analysis to each particular case and work out just what will or won't be considered as being "in the best interests of the child". But already a four judge panel of the Ontario Court of Appeal has upheld a lower court's decision requiring a mother to stay in Hamilton rather than allow her to move to Scotland with her new husband.

In the Woodhouse case the mother had custody of the children and wanted to move to Scotland with her new husband, a Scottish master carpenter. He had a job waiting for him there but only "grim" job prospects here. The move would have allowed her to become a full-time housekeeper. In Hamilton she had sold her business and was on social assistance. Notwithstanding these factors the court considered Goertz v. Gordon and felt that such a move was not in the best interests of the children, even though they were clearly in the mother's best interests and her wish was not motivated by any improper reasons. In one of the first decisions to follow the Goertz reasoning, the concern that mobility rights have been restricted seems to be well founded. (This case is now under appeal to the Supreme Court of Canada and our top court will get yet another chance to "clarify" the rules surrounding mobility rights.)