To Move Or Not To Move

In an application to the court to determine whether a parent may move with the children, called a mobility application, the courts must determine whether it would be in the children’s best interests to move, but in making this determination, the courts are mandated to attempt to maximize each parent’s contact with the children to the extent possible in order to allow each parent to develop and maintain a meaningful relationship with the children.  This is not an easy task and it involves a balancing of competing interests.

In a recent custody case, the Supreme Court of B.C. refused to allow the mother to move to Australia with the children to be with her sick mother.  The mother was born and raised in Australia and her parents and siblings remained there, but she had moved to Canada after marrying the father.  She testified that it was always her intention to move back to Australia that that the father had promised her that they would move there within a year of their marriage.  She stated that her mother was terminally ill and her father had health problems and she felt that it was important for the children to become acquainted with their maternal grandparents.  She said that the children could maintain a relationship with the father by speaking to him by telephone and by webcast over Skype on a daily basis, in addition to several weeks of visits with the father each year.  The father argued that the move to Australia would not be in the best interests of the children as the children need emotional support and presence of both parents, which could not be accomplished via Skype or similar technology.  The court found that both parents were loving and capable parents, but ultimately agreed with the father.   It found that if the mother moved with the children, there would be an emotional loss which would be suffered by them, as they would grow up with limited physical and emotional affection from their father. Skype was not enough because the children would not be able to participate in activities or events with their father and, as a result, a move to Australia would likely terminate any meaningful relationship they have with their father.  The court ordered that the parties were to have joint custody and guardianship of the children and that the mother was not permitted to move to Australia with the children.

The full text of this case,  C. (E.L.) v. B., can be found at: http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc1543/2009bcsc1543.html

If you would like to discuss the issue of parental mobility and/or other family law issues, please do not hesitate to contact Ashleigh Baylis at baylis@pushormitchell.com