A Study of Post-Separation/Divorce Parental Relocation

5.0 Discussion and Conclusions

5.1 Summary of parental relocation literature and Canadian data

Parental relocation is one of the most bitterly contested issues in family law. A study from Australia (Parkinson & Cashmore, 2009) found that, while approximately 6 percent of family law cases require a judicial disposition, 59 percent of relocation cases are decided in court. Similarly, in New Zealand, 51 percent of relocation cases were litigated (Taylor et al., 2010). According to a CRILF survey of family lawyers in Canada, respondents reported that parental relocation was an issue in an average of 13 percent of their cases in 2006, but the range of responses was wide, from 0 to 75 percent. According to the review of Canadian cases, there has been a slight increase in the number of reported relocation cases over the past decade, but the relocation "success rate" has remained essentially constant at just above 50 percent.

While the social science literature on relocation is growing, the quality of the research varies considerably and the conclusions are not totally consistent; as a result, the research is difficult to apply in individual cases or use for policy development. Some mental health professionals in the 1990s focused on the importance of the child's relationship with the primary caregiver and argued in favour of a presumptive right of primary caregivers to move with their children (Wallerstein & Tanke, 1996). However, many researchers now accept that post-separation relocation is a "risk factor" for children, and recognize that on certain measures, in general, children who relocate after separation have more difficulties than children who do not relocate (Austin, 2008; Kelly & Lamb, 2003; Kelly, 2007; Stahl, 2006; Waldron, 2005). There is, however no research to establish that negative outcomes are caused by the relocation, or that the children who in fact relocated would have been better off had they not relocated.

There are many factors involved in relocation after separation, and there are often economic and social factors that make the populations who relocate different from those who do not relocate. The studies of children and young adults who relocated did not assess whether there was an option of not relocating, let alone attempt to determine what the effects of not relocating would have been. Further, the existing research suggests that most children who relocate after separation adjust reasonably well and do not appear to suffer significant long-term negative effects (Taylor et al., 2010).

There is a very strong gendered element to Canadian relocation cases; the parent seeking to relocate is almost always the mother, though in the relatively small number of Canadian cases in which fathers have sought to relocate with a child, their success rate was not dissimilar to mothers. This finding is consistent with recent research from Australia reporting that the vast majority of parents wishing to relocate with the children after separation were mothers (Behrens, Smyth & Kaspiew, 2009; Parkinson et al., 2010).

According to the Australian studies, the primary reasons for wanting to move included mothers wanting to be closer to their families, to be with a new partner, for economic reasons, and to escape violence. A survey of Canadian family lawyers also found that the most common reasons for relocation requests were to be with a new partner, for an employment opportunity, or to be closer to family/friends (Paetsch et al., 2006). The review of Canadian cases undertaken for this report found that the most common reason for wanting to relocate was improved economic or job prospects, followed by the mother wanting to move for a new intimate relationship, and the custodial mother seeking social and emotional support from her family.

Researchers recognize that any decision about a child is affected by developmental factors, and recommend that, if relocation occurs, plans for continuing contact with the "left behind" parent take account of the child's age and developmental needs. For younger children, relocation may disrupt psychological attachment with a parent who will not be seen on a frequent basis, but the transition to a new home will be easier because the child will not have strong peer, school or community ties. For older children, disruption of peer, community and school relationships as a result of relocation are important factors to consider. However, the review of Canadian cases did not find that age of the child was significantly related to the success rate of parental relocation applications.

Relationships with the "left behind" parent will be affected by relocation, though the nature and extent of the effect will depend on many factors, including the distances involved and resources of the parents for travel, and of course the nature of the pre-existing relationship between that parent and the child. According to the 2006 Canadian census, separated and divorced people who moved were considerably more likely to stay within the same municipality than were married people. Separated, divorced or widowed people who moved were substantially more likely to move within their municipality than outside it. In contrast, legally married people who moved were equally likely to move within their municipality as outside their municipality. Similarly, the 2001 General Social Survey data found that almost three-quarters of non-residential parents lived within 100 km of their children, which is a reasonable distance to allow frequent visitation. The 2006 General Social Survey data found that over one-half of non-residential parents reported that their child lived within 10 km, and another quarter said their child lived within 50 km. Only 8 percent of non-residential parents reported that their child lived 1000 km away or more, or outside Canada or the United States. Although international moves are more disruptive to a child than relocation within the province or country, the review of Canadian cases found that the rate of successful applications for international moves is actually higher than for national moves; this may be explained by the differences in the nature of the international cases and is consistent with findings from other countries.

The literature found that significant contact with the non-moving parent is likely to be disrupted and the relationship may possibly wither away if there is relocation and there has been a high conflict parental separation, or there are family violence, parental mental health or substance abuse issues (Behrens & Smyth, 2010; Taylor et al., 2010). The relationship of the child with the non-moving parent prior to relocation and the degree of support of the moving parent are also significant factors in whether a strong relationship will be maintained with the child. Further, the financial resources of the parents and potential changes in their intimate relationships and circumstances make it advisable to "reality test" plans for continued contact between children and the non-moving parent.

The review of Canadian cases found that custodial mothers have a greater chance of gaining permission for relocation if there are substantiated allegations of family violence. Custodial mothers also have a greater likelihood of gaining permission for relocation if they had sole physical custody. Conversely, in cases where there was joint physical custody (each parent has the child at least 40 percent of the time), the court was significantly more likely to deny permission to relocate. The wishes of children were only mentioned in about one-quarter of the reported cases, although in about one-third of these cases, the children were ambivalent or did not express clear views. When children express clear views, judges tend to give considerable weight to their wishes regarding relocation, though they are not always followed.

Another interesting factor from the review of Canadian cases was that courts frequently expressed condemnation of parents who took unilateral action to move a child without the agreement of the other parent or approval of a court. However, custodial parents (usually mothers) were successful in almost half of the cases where they "moved first and asked permission later," as judges 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 place of previous residence.

Most recent writing by mental health researchers recognizes that there are both potential risks and potential benefits for children from relocation, and consequently recommends case-by-case weighing of risks and benefits (Austin, 2008; Kelly & Lamb, 2003; Kelly, 2007; Stahl, 2006; Waldron, 2005). These authors also recognize the importance of canvassing the perspectives and views of older children in making relocation decisions.

5.2 The challenges of law reform for relocation cases

Relocation cases represent a significant portion of all litigated family law cases, and as discussed in this report, they seem to be growing in number and are more difficult to settle without a trial than most other cases. Part of the challenge in settling is a reflection of the inherent difficulty in finding a "middle ground" in these situations. The high degree of discretion and lack of direction afforded to trial judges by the best interests of the child test of Gordon v. Goertz may also make settlement more difficult.

There continue to be calls for reform of the laws governing relocation of children if one parent wants to move with the children. An important motivation for many reformers is to provide greater direction for judges, lawyers and parents to facilitate settlements and adjudication. Other reformers, however, want to see substantive changes in the law, typically seeking to increase the rights of parents with primary care (mothers) to relocate (Boyd, 2011), or to increase the rights of parents who do not have primary care (fathers) to prevent a move in order to maintain their relationships with their children (Warshak, 2003).

One set of proposals for reform was put forward in a White Paper of the government of British Columbia in the summer of 2010 and includes provisions that would deal with the onus of proof in relocation cases. Where the day-to-day care of the child is substantially equal, the burden would be on the parent who wants to move with the child to show that the proposed move is in good faith and is in the child's best interests. If the care of the child is not substantially equal, the burden would be on the parent opposing a move to show that it would not be in the child's best interests to move with the parent with primary care. Further, judges would be prohibited from considering whether a parent proposing a move with a child would relocate without the child in any event. A parent seeking to relocate with children would, however, generally be required to put forward a plan to show that "reasonable efforts" will be made to find ways to preserve the child's relationship with the other parent. Although these proposals have a child-focused rhetoric, placing an onus on parents who do not have day-to-day care of the child to establish that the best interests of the child are not served by relocation is controversial, especially with father's groups.Footnote 71 It is uncertain at this time whether British Columbia will enact these proposals, and there are presently no other government sponsored proposals for legislative reform in other Canadian jurisdictions.

As discussed in Chapter 2.0, most countries have relocation laws that are similar to the best interests approach set for Canada by the Supreme Court in Gordon v. Goertz. There has been a growing interest internationally to reform the law governing parental relocation, and if possible develop a degree of consistency in the approaches in different jurisdictions, though there is still a lack of consensus about how to proceed (Elrod, 2010). In the United States, an effort by the American Law Institute's Uniform Law Conference to draft a model act to govern relocation was abandoned in 2009, as the drafting committee concluded that the pressure from different advocacy groups would make it impossible to gain significant legislative support for any reforms. Nevertheless in 2010 the American Bar Association Family Law Section appointed a committee to work on the development of a Model Act on Relocation (Elrod, 2010).

In 2010 there were international conferences in Washington and London that addressed family relocation, especially in the context of cross-border cases. In March 2010, the more than 50 judges and family law experts attending the International Judicial Conference on Cross-Border Family Relocation adopted the Washington Declaration on International Family Relocation.Footnote 72 The Washington Declaration makes some important proposals about the international recognition and enforcement of relocation decisions, as well as procedural proposals for national laws. The Declaration endorsed the use of a "best interests" test, without any presumptions for or against relocation. The Declaration begins with two child-focused factors to be considered in making best interests decisions about relocation:

  1. the right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child's development, except if the contact is contrary to the child's best interest; and
  2. the views of the child, having regard to the child's age and maturity.

The Washington Declaration provides a list of other factors to be considered in making "best interests" relocation decisions. Although a little more detailed than Gordon v. Goertz, the rest of the factors resemble those articulated by the Supreme Court of Canada, except that there is specific reference to domestic violence and there is a statement that "where relevant to the determination of the outcome, the reasons for seeking or opposing the relocation" are to be considered (p. 2). The Washington Declaration also included a statement that:

The Hague Conference on Private International Law... is encouraged to pursue the further development of the principles set out in this Declaration and to consider the feasibility of embodying all or some of these principles in an international instrument. To this end, they are encouraged to promote international awareness of these principles, for example through judicial training and other capacity building programmes. (p. 5)

The Washington Declaration received approval by the Canadian Network of Contact Judges in February 2011.

In July 2010, a group of 150 lawyers, judges and scholars from 18 developed countries attended the International Conference on Child Abduction, Relocation and Forced Marriage in London. Some of those at the London Conference also attended the Washington Conference, and the London Conference adopted relocation resolutions similar to those in the Washington Declaration. One of the London Resolutions also advocated that the Special Commission of the Hague Conference on Private International Law should work towards the "introduction by international instrument or otherwise of a common framework for resolving disputes relating to the international relocation of children" (p. 3).Footnote 73 The second half of the Sixth Special Commission on the 1990 and 1996 Conventions will be held in The Hague commencing January 24, 2012. A major agenda item at that time will be the issue of relocation. These international developments suggest that there is real interest in the development of standards to make the treatment of parental relocation decisions more uniform, if not more predictable.

In Canada it has been proposed by prominent Toronto family lawyer, Phil Epstein,Footnote 74 that a process similar to that used for the development of Spousal Support Advisory Guidelines could be used to develop what might be called Relocation Advisory Guidelines (RAGs). He proposes that a committee of lawyers, judges, government policy makers and academics draft working papers and circulate them for consultation with the Bar, Bench and interested members of the public. Over time, this work might lead to the development of a set of RAGs to reflect existing jurisprudence and help to resolve cases. As with the SSAGs, this project would be an advisory codification of existing law rather than an effort to change the law.

The discretionary, individualized nature of the "best interests test" may appear to make relocation a "ruleless" area. However, the analysis of the Canadian case law in Chapter 3.0 of this report suggests that this is not in fact a totally unpredictable area. Although the failure of the courts to articulate clear rules can make it difficult to see the patterns in the jurisprudence, some broad trends are apparent. An awareness and understanding of the social science literature and of the patterns and trends in case law may help practitioners, including judges, lawyers, mediators and assessors, to more effectively and efficiently resolve relocation cases. This type of knowledge is also important for policy-makers and legislators who may seek to address these issues.

Despite the difficulty in settling relocation cases, a negotiated resolution to these cases is often best for the children and parents involved. Litigation is embittering and expensive, and often exacerbates relations between the parents, thereby causing suffering to the children involved. A supportive relationship between the parents is important if the children are to maintain a positive relationship with both parents if there is any significant distance between the residences of the parents; litigation will inevitably strain the relationship between the parents making it more difficult for the children to have positive relationships with both parents. Further, this type of litigation is especially likely to find children "caught in the middle," and be stressful for them, regardless of the outcome. While it is beyond the scope of this paper to discuss the many practical issues involved in negotiation of settlements in relocation cases (e.g., Mamo, 2007), knowledge of the social science research and case law discussed in this paper are essential for lawyers, judges and mediators involved in such negotiations.

5.3 Suggestions for future research

As discussed in this paper, there is a growing body of social science research on the effects of parental relocation on children, but there is clearly a need for more and better social science research. The review of the literature and the examination of existing Canadian data on parental relocation for this project revealed limitations to the presently available information that leads to suggestions for future research. Such research could inform the work of judges, lawyers, mediators and assessors. This type of research could also be important for those involved in any policy development with respect to relocation, and for those responsible for the development of family justice services. Further, such research would be important for parents who may be facing the potential of relocation post-separation or divorce, and of course ultimately to their children.

While Canada has several national surveys that collect data on families, e.g., census, the General Social Survey, and the National Longitudinal Survey of Children and Youth (NLSCY), none of these large-scale surveys were designed to collect data directly on the issue of parental relocation. It is not known, for example, how frequently people move, nor can it be determined whether moves are directly related to relationship breakdown. While the census data provide information on both marital status and mobility, the data are correlational, and it is impossible to determine if a move was a result of a separation or divorce. Census data are available on individuals who immigrate to Canada, but not on individuals who move out of the country. One possibility for addressing this gap is to add questions to existing national surveys that would collect data specifically related to mobility following relationship breakdown.

Another major gap in the literature on parental relocation is the lack of information on the effects of relocation on children, especially in Canada. Ideally, research in this area should collect data from both parents and children, and should be longitudinal in design. Some of the international studies presented in Chapter 2.0 provide good examples of social science research and highlight factors that should be considered when conducting research in this area. Norford and Medway's (2002) study of American high school students, for example, accounted for the frequency of moves, the primary reason for the moves, and collected data from both students and a sample of their mothers. However, the study did not account for the distance of the moves or the nature of the students' relationship with the non-moving parent.

The analysis of the reported Canadian case law in this report provides some valuable information, but it was limited to decisions written in English. Undertaking a similar study of decisions written in French would provide a more complete national picture of patterns and outcomes of relocation cases.Footnote 75

Two ongoing studies from New Zealand and Australia are providing important insights into this topic. Taylor et al.'s (2010) longitudinal study is one of the first to collect data from both parents and children involved in relocation disputes. In addition to examining parents' and children's experiences with relocation case outcomes, the study explored the factors associated with positive and negative outcomes for children, patterns of contact with the non-custodial parent following the move, the relationship between the parents, and the relationships the children had with each parent. Interestingly, the study will also examine the accuracy of the predictions made by judges about the consequences for parents and children of the decision regarding relocation. Parkinson et al. (2010) are currently conducting a prospective longitudinal quantitative and qualitative study on relocation in Australia. This study involves collecting data from both parents and children, and examines both successful and unsuccessful court cases.

While relocation cases do not account for a substantial proportion of all family law cases, they are difficult to settle and accordingly take up a disproportionately large amount of court time as well as private resources for lawyers and litigation expenses. Judges have little reliable social science research to rely on when making their decision and virtually no Canadian studies on the topic. The mobility data that are currently available in Canada provide general trends for the population but are inadequate for examining this topic in detail. Should Canada decide to conduct further research in this area, there are good international examples that could be adapted to the Canadian context.