A Study of Post-Separation/Divorce Parental Relocation

3.0 Analysis of Reported Canadian Cases

In this chapter we present an analysis of reported Canadian court cases dealing with relocation. This is a study of factors and outcomes, and an attempt to determine whether there are patterns that may be significant for policy makers or practitioners. This is not a traditional analysis of jurisprudential trends and precedents, but in order to help readers understand the significance of the data, it is helpful to begin with a review of the general principles of Canadian law governing parental relocation, and some illustrative examples from the case law are included in the discussion of the data.

3.1 The legal framework

3.1.1 Statutory provisions in the Divorce Act - The best interests test

The federal Parliament has jurisdiction over custody and access issues that arise in the context of divorce, as provided for in the Divorce Act,Footnote 8 while provincial/territorial legislation like Ontario's Children's Law Reform ActFootnote 9 [C.L.R.A.] applies to parents who were never married, or who are separated but not seeking a divorce. The federal Divorce Act and the provincial legislation like the C.L.R.A. are both premised on making decisions based on the "best interests of the child." Section 16 of the Divorce Act includes a number of provisions that may be applicable to relocation cases:Footnote 10

16 (6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

(7) Without limiting the generality of subsection (6), the court may include in an order ... a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

(8) In making an order under this section, the court shall take into consideration only the best interests of the childof the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

Pursuant to subsection 16(7) of the Divorce Act, an order of the court granting one parent custody of a child may require that parent to give notice to the other parent of any planned change of residence of the child.Footnote 11 The statutory notice period is "at least" 30 days, and it is common in orders and agreements to specify a 60 day notice period. The other parent, upon receipt of notice, may apply to the court to challenge the proposed change of residence, or seek a variation of the custody or access arrangements. This notice period may also allow for an opportunity for parents to attempt to negotiate acceptable terms for relocation prior to it occurring.

3.1.2 The "bests interests" approach of Gordon v. Goertz

In the mid-1990s, a number of Canadian decisions recognized a presumptive right of a custodial parent to relocate following separation, at least in the absence of a specific provision in a separation agreement or court order to the contrary.Footnote 12 This approach was consistent with the "tender years doctrine," which gave mothers a presumptive right to custody after separation and with social science research of that period, which emphasized the significance of a child's relationship to the primary caregiver for post-separation outcomes.Footnote 13 For example, in its 1995 decision, the Ontario Court of Appeal in MacGyver v. RichardsFootnote 14 adopted this presumptive approach, ruling that, if a custodial parent was "acting responsibly,"Footnote 15 the burden of proof rested with the non-custodial parent to show that the move would not be in the child's best interest. In the year after the MacGyver decision, the Ontario courts approved the vast majority of relocation applications (Thompson, 2004), though the decision was cast not in terms of parental "rights," but rather as "presumptive deference" to the decision of a custodial parent, as the welfare of the child was considered to be "predominantly attached" to the welfare of the custodial parent.

Relocation decisions in Canada are now governed by the 1996 Supreme Court of Canada decision in Gordon v. Goertz,Footnote 16 a decision that requires judges to make individualized determinations of a child's best interests, without any presumption in favour of either parent. Gordon v. Goertz, though decided under the federal Divorce Act, also applies to cases decided under provincial legislation.Footnote 17 The courts interpret and apply the federal and provincial/territorial legislation in the same way when dealing with relocation cases, even though most provincial/territorial legislation does not have an equivalent to the "friendly parent" provision of s.16(10) of the Divorce Act; although s. 16(10) is sometimes cited in relocation decisions to support claims about the importance of the child's relationship with both parents and as a reason for not allowing relocation,Footnote 18 the absence of this provision from provincial/territorial statutes does not affect how the law is applied.

The Supreme Court in Gordon v. Goertz held that the Divorce Act requires the merits of any relocation application be decided based on an assessment of the best interests of the specific children involved, without a presumption or onus in favour of either parent. Justice McLachlin summarized the law in an oft-quoted passage:

The focus is on the best interests of the child, not the interests and rights of the parents. More particularly the judge should consider, inter alia:

  1. the existing custody arrangement and relationship between the child and the custodial parent;
  2. the existing access arrangement and the relationship between the child and the access parent;
  3. the desirability of maximizing contact between the child and 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 of a change in custody;
  7. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.Footnote 19

One of the most controversial statements in the judgement is that the custodial parent's reasons for moving are relevant only in "the exceptional case." The Court reasoned that since "the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration...barring an improper motive reflecting adversely on the custodial parent's parenting ability," the reasons for the move should not be considered by a court.Footnote 20 Notwithstanding this statement, as is discussed more fully below, this direction is now generally disregarded by the lower courts, which regularly consider and assess the reasons for a proposed move.Footnote 21 The malleability of the overall approach adopted by the Supreme Court gives lower courts the flexibility to disregard some of the Court's specific statements, and the development of a greater focus on the needs of the child has resulted in the exception effectively swallowing this rule.

One of the challenges faced by the courts in dealing with relocation cases is that they inevitably require the judges to make assessments about an inherently unpredictable future. In the 2010 British Columbia case of S.L.C. v. K.G.C., a case in which the court refused to allow the mother of two children aged 6 and 12 to relocate, Rogers J. observed:

The party advocating relocation will, in most cases, be "rolling the dice." ...she cannot know with precision how things will turn out for the children in the new location. It would, I think, be unreasonable to require the moving parent to prove on the balance of probabilities that after the proposed move is made a certain thing will happen for the children's benefit. The British Columbia Court of Appeal in S.S.L. recognized this when ...it observed:

In cases like this where courts are called upon to make what one judge has called an "educated prediction" as to the best interests of the children, based not only on evidence of their old life, but also evidence of what parents believe will transpire in their new life....Footnote 22

Although Gordon v. Goertz has been criticized for a number of reasons, in particular for the unpredictability that it creates, the Supreme Court is apparently not inclined to revisit this issue, dismissing leave to appeal in a number of relocation cases from across Canada over the past decade and a half.

3.2 Methodology

The research team undertook an analysis of all reported Canadian relocation court decisions written in English from January 1, 2001 to April 30, 2011.Footnote 23 During this period there were over 700 Canadian cases, with the largest numbers in British Columbia and Ontario. Table 3.1 sets out the number in each jurisdiction, and the "success rate" (percentage permitted to move).Footnote 24

Table 3.1 Relocation cases and success rates: Canada
Jurisdiction Number of relocation cases Number of moves allowed Percentage of moves allowed
British Columbia 195 105 54
Ontario 193 107 55
Saskatchewan 88 42 48
Alberta 70 32 46
Nova Scotia 56 22 39
Newfoundland 29 11 38
Manitoba 27 16 59
New Brunswick 27 13 48
Quebec 26 16 62
Territories 17 8 47
Prince Edward Island 10 7 70
Total 738 379 51

3.3 Trends and factors in relocation cases

3.3.1 An increase in the number of cases, while relocation success rate constant

Professor Rollie Thompson of Dalhousie Law School reported that in the period between when the Supreme Court decision in Gordon was rendered in May 1996 and early 2004, about 60 percent of Canadian decisions permitted the relocation, but he also observed a "gentle but noticeable decline in the proportion of 'yes' cases starting around the year 2000" (Thompson, 2004, p. 404).

While there are fluctuations in the number of cases reported in each year and the trend is not uniform across the country, in Canada there was a trend towards an increase in the number of cases between 2001 and 2010. Figure 3.1 presents the number of cases by year and the associated trend line.

In Canada as a whole, there were 738 cases in the study period, with a success rate for relocation applications of 51 percent from 2001 to 2010.Footnote 25 In all jurisdictions with 60 or more cases over the decade (i.e., an average of at least six a year), the success rate is in a fairly narrow range from 46 to 55 percent, suggesting that there was neither significant geographical variation in approach across the country nor has there been variation over time during the past decade.

Figure 3.1 Number of cases per year across Canada from 2001 to 2010

Figure 3.1 Number of cases per year across Canada from 2001 to 2010

Figure 3.1 - Text equivalent

Figure 3.1 is a line graph that presents the number of parental relocation cases by year across Canada from 2001 to 2010, as well as the associated trend line. The years from 2001 to 2010 are shown on the x axis, and the number of cases is shown on the y axis (on a scale from 40 to 90). The figure shows that there was a trend towards an increase in the number of cases between 2001 and 2010, with the trend line sloping upwards from 63 cases in 2001 to 81 cases in 2010. The figure plots the actual number of cases per year in a fluctuating line with an uphill trend as follows: 61 in 2001; 68 in 2002; 66 in 2003; 79 in 2004; 63 in 2005; 75 in 2006; 66 in 2007; 77 in 2008; 77 in 2009; and 87 in 2010.

3.3.2 Mainly mothers who apply

Consistent with studies from other jurisdictions, the vast majority of applicants for relocation were mothers, though interestingly in Canada the success rates were similar regardless of whether the applicant was the mother or the father. In the study period, in 92 percent of cases the mother was the parent seeking to relocate with the child. There were 55 cases where the father was the moving parent. Fathers had a success rate of 55 percent while mothers had a similar 51 percent rate of success in their applications for relocation.

The case reports indicated that the parents had cohabited or been married in 80 percent of the cases; in 5 percent of the cases, the judgement indicated that the parties had not cohabited or been married to each other, and the remainder did not provide a clear indication about whether the parties and child resided together. In cases where the mother was seeking to relocate and there was no prior history of cohabitation, the mother was successful in 60 percent of cases. Further, if the mother did not cohabit with the father and had sole custody (either official or de facto), she was allowed to relocate in 65 percent of cases.

Those who had cohabited or married had been separated an average of 3.4 years before the final court decision. An analysis did not show that time since separation had a significant effect on outcomes.

The parent seeking relocation had a lawyer in 93 percent of the cases, and the parent opposing the move had a lawyer in 89 percent of the cases.Footnote 26 Applicants had an average annual income of $38,756 and responding parents an average annual income of about $62,217 although in many cases no income figures were provided.

3.3.3 Reasons for seeking to relocate

In Gordon v. Goertz, Justice McLachlin stated that "barring an improper motive," such as a desire to disrupt the relationship with the other parent, "the custodial parent's reason for moving, [is to be considered] only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child."Footnote 27 Despite this general statement, judges in both the appeal and trial courts consider the reasons for the move, as the reasons will inevitably have at least an indirect impact on the welfare of the child.

While there is often more than one reason for wanting to move with a child, in most cases it is possible to identify what the court and moving parent consider to be the primary reason for the application of the parent to relocate with the child.Footnote 28 In the decade of the study, the most frequently cited primary reason for wanting to move was economic, usually because of a job transfer of the applicant or to obtain a better employment opportunity (or get a job after being unemployed). This was the primary reason in 33 percent of cases; applicants were successful in 52 percent of these cases (126/241). The second most common primary reason was a new relationship, in particular to reside with a new spouse, common law or intimate partner; this was the primary reason in 29 percent of cases, with a success rate of 48 percent (103/216). The third most common primary reason was to have better family support, especially for a custodial parent who wanted to move "back home." Family support was the primary reason in 19 percent of cases, with a success rate of 53 percent (73/138).

For mothers, the most common primary reason for relocation was economic/employment (32 percent), followed very closely by a new relationship (31 percent) and seeking better family support (19 percent). For fathers, the most common primary reason was also economic or employment (36 percent), followed by a request for change in custody/primary residence that entailed relocating the child (20 percent).

There were a range of other reasons. Perhaps not surprisingly, in 15 of the 18 cases where the reason for the move was that the primary caregiver (i.e., the mother) was facing deportation or lacked immigration status in Canada, the court permitted relocation with the child.

3.3.4 Substantiated familial abuse - A significant factor

While at one time Canadian courts did not seem to consider spousal abuse as a significant factor in relocation (McLeod, 2004), more recent cases recognize that any kind of familial abuse may be an important factor that affects the welfare of a child and should be taken into account in making relocation decisions.

The courts have long accepted that child abuse may justify terminating contact between parent and child, and are now clearly willing to accept spousal violence as an important factor in allowing relocation, especially if children witness it or directly suffer its effects, and it continues after separation. There is now a substantial body of Canadian jurisprudence where spousal violence was cited by the court as a reason for allowing the move, with the expectation that this will afford the mother and children some protection, and promote the welfare of the children.Footnote 29

Our review indicates that in cases where there has been a substantiated allegation of spousal or child abuse, a move is significantly more likely to be allowed than in other cases. However, the mere fact that there are allegations that there was spousal or child abuse during the marriage or cohabitation is not sufficient to justify a relocation order. The court will be concerned with the seriousness of the allegations, whether they are proven in court, and whether the abuse has continued after separation. Further, if the court concludes that the person making the allegations, usually the mother, has significantly exaggerated or fabricated concerns about spousal or child abuse and concludes that there are not serious safety issues, it is likely to dismiss a request to move.Footnote 30

In the study period there were 170 cases (23 percent of all relocation cases) in Canada in which there were allegations of family violence. Of the 170 cases involving allegations of familial abuse, the judge made a determination of the validity of the allegations in 121 cases, and found the evidence inconclusive in 49 cases.

As illustrated in Figure 3.2, of the 121 cases with a finding about familial abuse, the judge concluded that the allegations of family abuse were supported by the evidence in 75 cases, and a move was allowed in 81 percent (n=61) of these cases. The judge concluded that the evidence suggested that the allegations were unfounded or significantly exaggerated in 46 cases, and a move was allowed in only 15 percent (n=7) of these cases. The judge did not make a finding about the validity of the allegations in 49 cases, and a move was allowed in 43 percent (n=21) of these cases.

Figure 3.2 Effect of domestic violence allegations on relocation cases

Figure 3.2 Effect of domestic violence allegations on relocation cases

Figure 3.2 - Text equivalent

Figure 3.2 is a bar graph that presents the effect of domestic violence allegations on relocation cases. The x axis shows the three possible outcomes of a domestic violence allegation: Court accepts allegations; Court rejects allegations; and Court undecided. The percentage of moves allowed is shown on the y axis (on a scale from 0 to 100). The data presented in the figure are as follows: the first (and largest) bar shows that when the Court accepts the allegations, moves are allowed in 81 percent of the cases; the second (and smallest) bar shows that when the Court rejects the allegations, moves are allowed in 15 percent of the cases; and the third bar shows that when the Court is undecided, moves are allowed in 43 percent of the cases.

Most of the cases where allegations of familial violence were made involved mothers claiming spousal violence, though some involved child abuse only or both child abuse and spousal violence. Of the 120 cases where only spousal violence was claimed, there were 62 cases where the court found that the claim was substantiated (50 moves allowed, 81 percent success), 19 where the claim of spousal violence was rejected (2 moves allowed, 11 percent success) and 39 where the court was undecided about the validity of the allegations (15 moves allowed, 38 percent success).

In general then, in cases where there was a finding as to whether or not familial abuse had occurred, Canadian judges were significantly more likely to allow a move if abuse had been substantiated as compared to cases where abuse had been alleged but not substantiated.Footnote 31

The mother made the family violence allegations in the vast majority of cases (96 percent) in which the issue was raised. With regard to violence alleged by fathers, there were seven cases where the father was the parent seeking relocation and made allegations of child abuse or spousal violence, five involved allegations of child abuse and two involved allegations of spousal abuse. The court accepted evidence of child abuse in two cases (moves were allowed in both) and was undecided about the father's child abuse accusations in three cases (move allowed in all three). The court accepted the father's evidence of spousal abuse by the mother in two cases, and allowed the move in one of them. So fathers who made family violence allegations were permitted to relocate with their children in six of seven cases.

3.3.5 Intra-provincial vs. national vs. international moves

Social science research suggests that distance is an important factor in assessing the impact of a move on the relationship between children and the left-behind parent. More accurately, the time that it takes to travel between the old and new location is an important factor, which is moderated or exacerbated by the resources that can be devoted to the travel and the willingness of the moving parent to support the relationship despite the distance.

Interestingly, research from Australia and New Zealand (Taylor et al., 2010; Parkinson & Cashmore, 2010) as well as Canada suggests that there may be a higher success rate in the courts for international as opposed to domestic moves. In Canada, Prof. Thompson (2011) reported that moves were allowed in 47 out of 72 international relocation cases decided between January 2005 and May 2010, a 65 percent success rate (15/25 to the USA and 32/47 overseas), a somewhat higher rate than for moves within Canada.

In our study of relocation cases over a decade, almost 80 percent of cases involved moves within Canada and just under 30 percent of cases involved moves within the province. As in the studies from other countries, the success rate was substantially higher for the international moves (62 percent) than for moves within Canada (49 percent). Within the province, 52 percent of moves were permitted.

Although the higher success rate in applications for international moves may seem counterintuitive, since these moves will typically involve larger distances and likely less frequent contact with the non-moving parent, it seems like a relatively robust finding across countries and may be explained by a number of factors. Many of these cases involve "primary caregivers" (mothers), often with younger children, who are having difficulty after separation adjusting to life as an isolated single parent in Canada. They are moving "back home" for family support and economic reasons. Our review of cases suggests that in the international cases, the applicants also tend to have more solid reasons for wanting to move and clearer plans. For example, international relocation for a new intimate relationship almost always involves a new marriage, while domestic cases more frequently involve common law relationships or even new boyfriends but no cohabitation, suggesting a lesser degree of commitment and stability for the new relationship.

3.3.6 Relationship of children with the moving and other parent: Custody status

The relocation jurisprudence indicates that one of the most important factors in relocation cases is the judicial assessment of the comparative importance of the children's relationships with the two parents. The fact that the parent who wants to move is characterized by the court as the "primary caregiver" or has sole legal custody does not necessarily mean that the court will allow the move.Footnote 32 However, if the child has only limited involvement with an "access parent," the court is much more likely to allow the child to move.Footnote 33 If the child was born to a single mother and the father never lived with the child, the mother is more likely to have sole custody, in which case she will also be more likely to be permitted to relocate.

The fact that a joint legal custody arrangement exists between the parties is not determinative of a relocation case, and indeed is generally given little weight by judges. Joint legal custody does not prevent a primary caregiver from obtaining approval for a move, and a court may even order a joint legal custody regime to continue after the move, to signal that both parents are to have a continuing say in decisions about the child.Footnote 34 However, if there is joint physical custody (each parent has the child at least 40 percent of the time) courts are less likely to permit a move, because this would have a more disruptive effect on the child.Footnote 35

For analytical purposes, we divided the cases into three mutually exclusive categories: ones where the parent seeking relocation had sole custody; ones where there was joint legal custody but the child had a primary residence; and ones with joint physical custody (joint legal custody with each parent having the child at least 40 percent of the time - also called "shared custody" in Canada).Footnote 36 Overall, our analysis suggests that the custodial arrangement has a significant effect on whether or not a move will be permitted (see Figure 3.3).Footnote 37

There were 324 cases with the applicant having sole legal custody (as established by separation agreement, court order or on a de facto basis); in these sole custody cases, relocation was permitted in 64 percent of cases, considerably higher than in the other two categories.

Figure 3.3 Effect of custody arrangement on relocation cases

Figure 3.3 Effect of custody arrangement on relocation c

Figure 3.3 - Text equivalent

Figure 3.3 is a bar graph that presents the effect of custody arrangement on relocation cases. The x axis shows the three possible custody arrangements: sole custody; joint legal custody (less than 40 percent time); and joint physical custody (40 percent or more time). The percentage of moves allowed is shown on the y axis (on a scale from 0 to 100). The data are presented in descending order in the figure as follows: the first bar shows that in cases of sole custody, moves are allowed in 64 percent of the cases; the second bar shows that in cases of joint legal custody, moves are allowed in 50 percent of the cases; and the third bar shows that in cases of joint physical custody, moves are allowed in 30 percent of the cases.

In the joint legal custody cases, there was a joint legal custody regime, but the non-moving parent had the child less than 40 percent of the parenting time.Footnote 38 There were 240 joint legal custody cases; the move was allowed 50 percent of the time in these cases. In the joint physical custody (or shared parenting) cases, each parent had the child at least 40 percent of the time. There were 135 joint physical custody cases; the move was only allowed in 30 percent of these cases.

These data clearly suggest that the likelihood of relocation being allowed decreases as the involvement of the non-moving parent increases, and suggest that the nature of the relationship that the non-moving parent has with the child is a significant factor in judicial decision-making. The difference is most apparent in comparing the outcomes for sole custody as opposed to joint physical custody cases. The line between joint legal custody and sole custody is not always bright. There is a range of cases in which there is no real difference between joint legal custody and sole custody with generous access, and the terminology used to characterize the parenting arrangement is a reflection of local practice or professional preferences rather than differences in parent-child relationships. However, in many cases there is a real difference between sole custody and joint legal custody in terms of engagement of non-primary residence parents in the lives of their children.

3.3.7 Age of child

One of the most controversial issues in the mental health literature in regard to relocation is the effect that the age of the child should have on judicial decisions. As discussed in Chapter 2.0, mental health professionals like Kelly and Lamb have expressed particular concern about relocations involving preschool children (under 6 years) and especially those involving infants (3 years and under) as relocation during this stage of a child's life may result in a child losing, or never forming, a psychological attachment to an absent parent. Further, long distance visits with children in this age range are more difficult, both because they cannot travel alone and because relatively long "compensating blocks of time" with a parent who may effectively be a stranger to the child may be disruptive. On the other hand, younger children will have weak ties to their communities, and a move early in life may be less disruptive to a child. While relocation will significantly affect the child's ties to the non-moving parent, young children may not have significant psychological ties to the father if they have not lived with him or spent significant time with him, and they will be less likely to be immediately affected by a move than an older child who is more likely to miss the relationship with an absent parent.

As children grow towards adolescence, their wishes become more important, and their ties to schools, community and peers may also become significant anchors on a move. Older children may also be able to spend relatively large blocks of time with a parent who lives at some distance, and may more easily maintain a relationship with a distant parent, for example by phone and email, so that living farther from a parent will be less disruptive to the relationship of parent and child.

While some of the social science literature discussed in Chapter 2.0 and reported casesFootnote 39 express concerns about children aged three and under relocating, the social science research suggests that as children move towards school age (6-11 years), they are better able to maintain a relationship with the parent from whom they are separated. Professor Thompson reported that from 1996 to 2003, Canadian judges were more willing to permit a move for children aged 6 to 11 years, than for children less than 6 years of age.Footnote 40 However, a review of Canadian cases from 2003 to 2008 by Jollimore and Sladic (2008) found no difference in success rates for relocation cases for children between birth and 5 years and between 6 through 11 years. Although they found a distinct rise in the percentage of cases allowing moves for children aged 10 to 14 years, it was not statistically significant.

Doing an age-based analysis of relocation cases is challenging because there is more than one child in many cases; in relocation studies, the common convention for dealing with cases involving more than one child is to use the age of the youngest child for that case, based on the assumption that that child is the one whose relationship with the non-moving parent will be most affected by the move. Using this convention, we considered various age rangesFootnote 41 to determine if there was a significant age effect.

For Canada, there were over 1,000 children in the 738 cases with 55 percent of cases involving single children and 45 percent involving multiple children. The mean age of the children was 7.5 years. There were 300 cases where the only/youngest child was aged 0 to 5; of those the move was permitted in 151 cases (50 percent). No significant age effects were found for younger or older children for Canada as a whole.Footnote 42

3.3.8 Wishes of the child

The wishes of children who are the subject of a relocation dispute will often be an important factor in determining the outcome of litigation, though many relocation cases involve younger children who are unable to express preferences, or older children who are unwilling to "take sides" and express their views.Footnote 43 There are good reasons for children not wanting to express their views about such a clearly dichotomous question as relocation, and an expression of preference by a child in a relocation case will often require the child to speculate about future living arrangements that have not been experienced. However, when children express their views, the courts tend to give significant weight to the wishes of children about relocation. One might expect that when the views of children are clear, especially if the children are approaching or in adolescence, parents also give significant weight to these views resulting in settlements rather than litigation.

Commonly in cases involving older children for whom friendships and peer groups are becoming important, the children are reluctant to move, make new friends and attend a new school, and these are cases in which the courts will refuse to allow relocation, or will change custody to the parent who will remain in the community where the children were raised.Footnote 44 There are, however, also litigated cases in which older children have a strong attachment to the parent who is moving and express a desire to relocate with that parent; these views are also given significant respect.Footnote 45 The expressed wishes of children are not determinative of relocation decisions, however, especially in cases in which there is expert evidence to indicate that a child's preference may not accord with his or her best interests, or in cases in which there are multiple siblings who may be expressing different views.Footnote 46

In our study of Canadian court decisions, we only found a clear indication of the children's views or attitudes towards the relocation in 124 cases (17 percent), and in another 55 cases (7 percent) the judgement reported that there was evidence before the court that the child/children were either neutral, or that they did not express a clear preference either way. In some cases the children were clearly too young to have views, and in a few, the parents specifically stated that they jointly agreed that the children should not be asked their views. In many of the cases, it is apparent that the children did not want to express a preference. Children's views were typically put before the court through expert testimony, as judges were often reluctant to interview children directly citing concerns over "forcing them to take sides." Furthermore, testimony from parents regarding their children's wishes was often conflicting and typically afforded little weight by the courts.

Of the 124 cases where the children had clear views, the children favoured the move in 87 cases; the move was allowed in 66 of these cases (76 percent). In 37 cases, the children opposed the move; in only 9 of these cases was the move allowed (24 percent) (see Figure 3.4). Thus in 94 of the 124 cases (76 percent) in which the children expressed clear views, the court's decision accorded with those views. This is a statistically significant effect.Footnote 47

Figure 3.4 Effect of children's wishes on relocation success rate

Figure 3.4 Effect of children's wishes on relocation success rate

Figure 3.4 - Text equivalent

Figure 3.4 is a bar graph that presents the effect of children’s wishes on relocation success rate. The x axis shows two possibilities for child’s wishes: child favours move; and child opposes move. The percentage of moves allowed is shown on the y axis (on a scale from 0 to 100). The data are presented in descending order in the figure as follows: the first (and largest) bar shows that in cases where the child favours the move, moves are allowed in 76 percent of the cases; the second (and smallest) bar shows that in cases where the child opposes the move, moves are allowed in 24 percent of the cases.

3.3.9 Conduct of the applicant: The "co-operative parent" vs. "badly behaved parent"

A number of studies suggest that one of the most important factors in predicting whether a child will have a strong relationship with the "left behind" parent after a move is the attitude of the relocating parent (Behrens & Smyth, 2010; Parkinson et al., 2010). If the moving parent is emotionally and practically supportive, a strong relationship can be maintained despite long distances and less frequent contact. Conversely, without those supports, it will be difficult to maintain a strong relationship with a child when the separations are of longer durations, and the visits more difficult to arrange.

Although court decisions frequently condemn mothers who take unilateral action (relocate with their children without the approval of the other parent or permission of the court),Footnote 48 in our study applicants were successful in 70 out of 144 cases where they "moved first and asked permission later" (49 percent). While judges condemned such unilateral action, they also took account of all of the circumstances of the case, including whether it was in the best interests of the children to face the instability of another move, this one a return to their prior place of residence. So taking unilateral action, while a negative factor, did not always have a determinative effect on outcomes.

In an additional 53 cases the applicant moved without the children but made an application to allow the children to relocate; the applicant was successful in 22 of these cases (42 percent). Perhaps due to the smaller number of these cases, this is not a statistically significant difference, but it does suggest that from a strategic perspective, moving without the children and then making an application to relocate them may weaken the applicant's case.

3.3.10 Residence restrictions clauses

It is not uncommon for separation agreements and court orders dealing with the custody of children to specify that the parties will both continue to reside in the same city as they lived in at the time of separation, unless the parties later agree or a court allows a move, or to require the custodial parent to provide the other parent with notification of any proposed move. While these clauses may affect the process by which a relocation case is brought before the courts, at least in Canada, they do not create a presumption against removal or change the onus which would otherwise apply in a relocation case.Footnote 49 The issue in a relocation proceeding is making a decision based on the best interests of the child at the time of the application, and it is accepted that parents cannot make a binding separation agreement about what will, after a change in circumstances (i.e., when a move is contemplated), be in the best interests of the child.

A clause preventing relocation requires that a custodial parent who wishes to move seek approval from a court for that move, but it does not create a special onus of proof in the relocation proceedings. If a proposed move would interfere with specified access provisions of a court order or agreement, the parent seeking to move should bring an application for judicial approval and proper notice to the other parent.Footnote 50 In our study of relocation cases, these clauses seem to have no effect on the final outcomes; there were restrictions on relocation clauses in 143 cases, with moves allowed in 73 of them (51 percent), exactly the same rate as for cases without such clauses.

3.4 The role of experts and children's lawyers

3.4.1 Limited role for mental health professionals

Assessment reports by psychologists or social workers are a significant feature of most types of child-related litigation, including child protection, custody and access cases. These reports provide the court with information and observations from an independent mental health professional who has conducted an investigation and prepared a report, also often making recommendations.

Compared to other types of child-related litigation, however, these expert reports are prepared in relatively few relocation cases and, if prepared, seem to be given less weight in relocation cases than in other cases. In our study, there was evidence from a court-appointed mental health professional in only 199 out of 738 cases (27 percent). In 45 cases the assessor recommended that the move should be permitted, with the court allowing the move in 34 of these cases; in 63 cases the assessor made a recommendation against the move, with the recommendation followed in 38 of these cases. In 91 cases, no recommendation about relocation was made in the report. Thus the assessor's recommendations regarding relocation were followed by the judge in 72 out of 108 cases, a somewhat lower rate (67%) than reported in most other studies on the role of experts in child related cases.Footnote 51

There are relocation cases in which judges have cited the evidence of a court-appointed expert as being influential in making a decision against a move,Footnote 52 though not infrequently in relocation cases in which there is a court ordered assessment, judges have disregarded the recommendations - in particular to allow a child to be relocated despite the expert's recommendations that the move not be permitted.Footnote 53 The late Professor James McLeod argued (2004): "courts finally seem to accept that mobility is a legal issue, not a mental health issue."

While the test for relocation articulated by Gordon v. Goertz is an assessment of the "best interests" of the child, the application of this test is quite different from that which applies in other custody and access disputes. The reality is that applications for relocation generally do not arise because of a genuine desire by the custodial parent to promote the interests of the children involved, except indirectly, insofar as the children's welfare is enhanced if the custodial parent has enhanced social or emotional satisfaction or improved economic prospects (Parkinson, 2011).

In ordinary custody and access disputes, the legal and the psychological conceptions of the "best interests" of a child are likely to be similar, and the evidence of a psychologist about the children involved may be of genuine value to a court. In a relocation case, the immediate psychological well-being of a child will rarely improve, no matter what decision is made by the court. The court is generally faced with a limited range of alternatives, each of which poses potential risks and benefits, and requires speculation about the future. In most cases there is no psychological research that casts direct light on the making of this type of decision.

Despite the limited use made of the evidence of mental health experts in relocation cases in Canada, psychological concepts are frequently used by counsel in making submissions and by experienced family law judges in making decisions. The rhetoric and analysis of legal professionals in these cases is generally not based on a protection of parental rights, but on promotion of the welfare of children. Judges frequently refer to the importance of "attachment" and "stability" in a child's life, even if no expert evidence is called. There are certainly legitimate concerns about the expense and potential delay in a trial from ordering an assessment, especially in a relocation case, as there is often need for a quick resolution. However, given the frequent references to psychological concepts by judges and lawyers in relocation cases, there are clearly relocation cases in which an assessment and testimony by a psychologist or social worker will be valuable.

3.4.2 Lawyers for children - Ontario

Ontario has an extensive program for the representation of children involved in parental disputes over custody, access or relocation, and even in Ontario children only have a lawyer in a small portion of cases. Overall in this study, children had a lawyer in only 34 out of 738 cases (just under 5 percent), with 26 of those cases in Ontario and 4 in Quebec.Footnote 54

While mental health professionals would seem to have only a limited influence on outcomes of relocation cases in Ontario, the lawyers for children from the Ontario Office of the Children's Lawyer, when involved in a relocation case, seem to have a more influential role at trial or appeal.Footnote 55 The Children's Lawyer is most commonly involved in relocation cases only where children are old enough to express their views.

If counsel from the Office of the Children's Lawyer is involved in a relocation case, typically counsel will be advocating for a position based on the wishes of the child. There are, however, relocation cases in which counsel from the Office of the Children's Lawyer concludes that the child has been improperly influenced by one parent, and may decide to advocate for a different outcome than the expressed preference of the child, albeit ensuring that the child's views are also put before the court.Footnote 56

Although judges have made it clear that they are not bound by the wishes of the child in a relocation case, nor are they bound to adopt the position advocated by counsel for the child, as discussed above, the wishes of children, when expressed, are often influential. The position taken by this Office often seems influential with the Ontario courts in relocation cases.Footnote 57 In our study of a decade of Ontario relocation cases, we found that in 7 of 10 cases in which OCL counsel made a recommendation, the court followed the recommendation (5 of 6 where the move was recommended, and 2 out of 4 where OCL counsel recommended against the move). The influential nature of the recommendations of OCL counsel may in part reflect the importance placed by judges on the wishes of children in these cases,Footnote 58 as well as the credibility of the OfficeFootnote 59 and the difficulty that judges face in determining what is truly in the "best interests" of children.

It is not uncommon in relocation cases, in which the parties have not already contacted the Office of the Children's Lawyer and there are older children involved, for a judge dealing with the case on an interim basis to request the involvement of that Office,Footnote 60 in the hope that there can be an independent investigation by a social worker or counsel appointed to advocate for the child. The Office, however, may decline to become involved and is not regularly involved in relocation cases; in the 193 Ontario cases in our study, counsel for the OCL appeared in only 26 cases (13 percent), and in 16 out of these 26 cases with counsel for the child, the court's decision did not reveal that counsel for the child advocated a position.

3.5 Stage of the proceedings

3.5.1 Interim orders

The reported jurisprudence establishes that there is clearly a higher persuasive burden on a custodial parent who wants an order permitting relocation to obtain court permission on an interim motion, which is usually based exclusively on affidavit evidence, rather than after a full hearing or trial at which all of the evidence can be presented and tested through cross-examination. There is less opportunity to present and test evidence on an interim motion, and judges are aware that, if an interim order is made and the child permitted to move, this is very likely to establish a status quo that will be very difficult to change at a later date. Accordingly, judges recognize that permitting relocation at an interim hearing is analogous to the parent seeking relocation making an application for summary judgement, and it is said that there must be "exceptional" or "compelling circumstances" if a court is to permit relocation on an interim motion.Footnote 61 If an interim motion for relocation is denied, this should, in theory, have no impact on the outcome of the trial. However, in many cases the dismissal of an interim relocation motion also results in a settlement because of a combination of financial and emotional exhaustion, disclosure of information and an indication of judicial thinking about the case.

While it is difficult for a party seeking relocation to succeed on an interim motion, if the judge is satisfied that the outcome of any possible trial would be "inevitable" because the non-custodial parent has had a limited relationship with the childFootnote 62 or has been abusive of the child, then relocation may be permitted on an interim application. If there is a high conflict separation or domestic violence which is clearly affecting the child's emotional well-being, the court may allow the primary caregiver for the child to relocate in order to reduce the stress on the child.Footnote 63 However, if there are conflicting affidavits and a lack of independent evidence,Footnote 64 or if the case for relocation does not seem very strong, then the court may not allow the move on an interim motion, even if the move is only an hour and half's drive, as even this relatively short distance can have a serious effect on a child's relationship with a parent.Footnote 65

Despite the high persuasive burden on interim applications for relocation, in our study, interim orders were sought in 158 cases and succeeded in 74, a rate (47 percent) that is only slightly below the rate in cases after a trial. In the successful interim cases, the judges were clearly adverting to the higher burden of proof and explaining why the cases were "exceptional." It seems likely that counsel bringing interim motions for relocation are aware of the test that they have to meet, and tend to bring these motions only when they have strong evidence in support.

3.5.2 Appellate decisions: Deference to trial courts

In Van de Perre v. Edwards, an ultimately unsuccessful custody variation that, if granted, would have resulted in the child moving from British Columbia to North Carolina with his father and leaving behind his previously custodial mother,the Supreme Court of Canada established a "deference standard" for the decisions of trial courts in family law cases.Footnote 66 In family law cases an appeal court should only reverse a trial decision if satisfied that the trial judge made a "material error," specifically that the judge misapprehended the evidence, erred in law, or reached a conclusion that was so perverse on the evidence and law as to exceed the "generous ambit within which reasonable disagreement is possible." Justice Bastarache highlighted the importance of finality in custody cases and the fact-specific nature of each case.Footnote 67

As observed by Justice Laskin of the Ontario Court of Appeal in dismissing an appeal by the custodial mother in the relocation case of Wolf v. Wales:

We recognize that mobility cases are among the most difficult cases a court has to decide. But these cases inevitably turn on their particular facts. The trial judge, who sees and hears all the witnesses, is in the best position to decide the child's best interests. This court cannot retry the case but must instead give deference to the trial judge's factual and credibility findings. Only if the trial judge erred in law or made findings of fact or credibility that were unreasonable are we entitled to intervene.Footnote 68

If the appeal court concludes that the trial court did not "err in principle," it will affirm the trial judgement in a relocation case, even if the effect of the decision is to make it more difficult for a parent to continue to have frequent contact with his children.Footnote 69

In our study, there were 83 appellate decisions, resulting in 59 trial decisions being affirmed (71 percent), 15 being reversed and 9 ordering for a new trial. This was an appellate "success rate" of 29 percent; this is somewhat lower than the overall success rate in family appeals found in a study of Ontario Court of Appeal decisions from the 1990-2003 period, which was over 40 percent (Stribopoulos & Yahya, 2007).Footnote 70

Appeal courts allowed the applicant to relocate in 14 of the 15 cases in which trial decisions were reversed without a new trial being ordered. Thus appellate courts allowed relocation in 47 out 83 cases (57 percent), which is roughly the same rate as trial decisions.

3.6 Summary

This chapter provided an analysis of Canadian relocation cases decided between 2001 and 2011. While each case is unique and trial judges have significant discretion in applying the "best interests of the child" test to relocation cases, the analysis revealed some clear trends: