Laws and Beyond

What is a Mobility Application/ Mobility case?

January 7, 2022

Family

When one parent seeks a significant relocation with a child, and in so doing is required to put the matter before the Court, it results in what is known as a “mobility application”.

A mobility application can be made during and after a divorce, such that the court grants the parent with custody of the child(ren), the right to move or relocate with said child(ren), despite the objection that the other parent may have. However, this must be done with the best interest of the child in mind.

In the leading case of Gordon v. Goertzi[1], which arose in the context of an application for variation of an existing custody and access order under the Divorce Act, the Supreme Court of Canada summarized the law in regard to mobility as follows:

  1. 1. The parent applying for a change to the parenting order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
  2. 2. If the above threshold is met, the judge evaluating the mobility application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
  3. 3. The inquiry is based on the findings of the judge who made the previous order and proof of the new circumstances.
  4. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parents’ views are entitled to great respect.
  5. 5. Each case turns on its own unique circumstances. The only relevant issue is the  best interest of the child within the circumstances of the case.
  6. 6. The main focus is in the best interests of the child, not the interests and rights of the parents.
  7. 7. The judges should also consider:
  • 1. The current custody arrangement and relationship between the child and custodial parent;
  • 2. The current access arrangement and the relationship between the child and also the access parent;
  • 3. The desirability of maximizing contact of the child with both parents;
  • 4. The views of the child;
  • 5. 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;
  • 6. Disruption to the child due to the change in custody;
  • 7. Disruption to the child resulting in removal from family, schools, and the community he or she has come to know.
  • 8. The parent with primary care can apply for the mobility application for full rights to relocate as they planned, as long as that parent can prove that the relocation will serve the child’s best interests.
The evidence that the court consider as to how the relocation will serve the child’s best interests, include the following factors: 
  • 1. Better housing or residence for the child.
  • 2. Better childcare, such as proof of possible registration
  • 3. Better schooling, such as proof of possible registration
  • 4. New or better employment opportunities for the parent, including proof of employment
  • 5. Better amenities
  • 6. Support from other family members (grandparents)
  • 7. Wishes of the child
  • 8. In some cases, expert reports such as psychological assessments

In accordance with the recent amendments to Divorce Act, effective March 1, 2021, if there is a previous court order or agreement in place, and parents do not have substantially equal parenting time, the legal burden rests on the non-moving parent to prove that the move is not in the best interests of the child. If, however, parenting time is substantially equal, the burden rests with the moving parent to prove why the move is in the best interest of the child.

Further, the Divorce Act provides a framework for notification procedure, whereby the parent with the planned relocation has to be notified the other parent (with parenting time and decision-making responsibility) of their intention to move at least 60 days prior to the scheduled move. This notice must also include the reason for the relocation and evidence of this. This is done so that the other parent has a 30-day time period to object to the planned relocation, and the failure to file objection is presumed to be an agreement to the relocation of the child.

The mobility application is only needed when the parents of the child are unable to negotiate a reasonable agreement among themselves. 

When a mobility application is granted, the parent left behind will be granted certain concessions or accommodations like extended holiday visitation this is done for the purposes of mediation, if the matter of mobility appears to be potentially negotiable, and the relocating parent should consider extending some goodwill in return.

Note: Parental relocation is one of the most unpredictable areas of family law and navigating a mobility application can be extremely difficult for the average parent. It is strongly recommended that a parent seeking to relocate or challenge a potential relocation consult a family law lawyer for advice in this regard, prior to making an application. Our Calgary Family Lawyers will help you get the results you want and best meet the needs for the future of your child. 

[1] Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, at para 49, <https://canlii.ca/t/1fr99#par49>, retrieved on 2021-12-20

 — Written by Megha Sharma & Danny Reyes  

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