Page 6 - Best Magazine Summer Edition 2019

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ECONOMY AND FINANCE
LAW ON MOBILITY:
CHANGING CHILDREN'S
RESIDENCE
BY CLAUDIA FALQUEZ-WARKENTIN
Can a parent unilaterally move with a child of the relationship to a city outside his/her habitual residence after separation? Changing a child’s residence is not to be done lightly,
on the spur of the moment, or without the other parent’s consent. If done unilaterally without the consent of the other parent, it will be deemed an abduction and it is severely punishable by the law, including jail time where the circumstances demand it.
In Ontario, about 55% of the mobility cases are decided in favour of the moving parent and in Canada about 60%. The results don’t appear to vary whether the moving parent is the mother or the father, as the cases are decided on the basis of the best interests of the children, and not what the parents want or desire, which is irrelevant.
The best approach is to negotiate an arrangement with the other parent where the parents are able to craft an arrangement that takes into account both the parents’ wishes and the best interests of their child; and when this fails, then the moving party can go to court to obtain the court’s permission to change the child’s residence.
The Supreme Court of Canada case of Gordon and Goertz [1996] 2 S.C.R. 27 sets the parameters to obtain the permission to move. This case was highly complex and the court undertook a fulsome review of the law as it pertained to parental mobility. The law on mobility has remained stable since then.
In Gordon and Goertz, the parties lived in Saskatoon and after their separation they took their dispute to court and the mother won the child’s custody with the father having generous access. Sometime thereafter, the father again took the mother to court to prevent the mother from moving with the child to Australia from Saskatoon as she wished to pursue a degree in orthodontics in Australia. The father asked for custody and if this failed, he asked in the alternative that the mother be prevented from moving to Australia altogether. The father lost his battle, as all instances at court including the Supreme Court of Canada, agreed the mother was the proper person to have custody of the child finding the move was not deliberately planned to cut ties off with the father. The court balanced this approach with ensuring that the father would have generous access to the child either in Canada or Australia and regular contact with the child.
• LAWYER •
The court’s paramount concern is to examine all factors that have an impact on the child’s best interests, examining amongst other factors, maximizing parental time with the children where possible; the children’s ages and their views if old enough; the disruption to the child removing him/her from his usual environment. The custodial parent’s reasons are considered but are not determinative.
The punishment for removing children from their usual residence includes changing custody to the other parent, forcing supervised visits on the removing parent and jail time.
A proposed move of a child away from a parent requires the assistance of an experienced Family Law lawyer with a view to preferably negotiate a comprehensive arrangement with the other parent, in as much as it is possible, and where necessary, who will not shy away from taking the matter to the courts where the circumstances call for it.
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THE BEST MAGAZINE SUMMER 2019
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