MOBILITY RIGHTS & CHILD ABDUCTION LAWYERS
When we speak of mobility rights we mean a parent’s right to relocate or move with a child. In Ontario, mobility rights are handled on a case-by-case basis. When the parent with the legal custody of the child decides to relocate after a separation due to a new job or facilitating a new relationship, the move will certainly affect the non-custodial parent’s access. Depending on the case it may become necessary for the moving parent to obtain the agreement of the non-custodial parent or a court order that varies the current access arrangement.
The Supreme Court of Canada established the test for determining issues of parental relocation in family law almost 25 years ago in the case if Gordon v. Goertz. The foremost requirement of a “material change in circumstances” must be met in order for the court to consider the issue. Once this is established, the best interests of the child are the dominant factor in reaching a decision.
The custodial parent’s decision to move is to be accorded “great respect”. Additional factors that the court is instructed to consider, include:
The existing custody arrangement and the relationship between the child and the custodial parent;
The existing access arrangement and the relationship between the child and the access parent;
The desirability of maximizing contact between the child and both parents;
The views of the child, where appropriate;
Any disruption to the child caused by his/her removal from family, schools and the community to which s/he has become well acquainted with.
Cases since Gordon v. Goertz have indicated the following trends in decisions of the court:
The parent who’s moving away should have a well though-out plan that provides the court with a depiction of that the child’s life will look like if the move is permitted;
The child’s age may be a crucial factor for not authorizing the move in circumstances where the child has no capacity to express his/her wishes;
There appears to be growing acceptance of the custodial parent planning to move away get away from parental conflict, especially where there is strong evidence of abuse or an exceedingly controlling parent.
Cases where parental relocation is at issue are among some of the most commonly litigated in family law as there are a number of important, competing interests at stake. If you are looking to relocate or are an access parent and want to dispute a proposed move by a custodial parent, one of our very experienced family law lawyers can help you understand and defend your rights. In these cases delay in invoking your rights can be devastating to your chances to block an unwanted move or bolster a necessary move. Don’t delay in contacting us for help.
In Canada, the most common form of child abduction is by a parent or guardian. Parental child abduction occurs when one parent, without the legal authority or permission of the other parent, takes a child from the parent who has lawful custody. Some family members aid the parent or guardian with removing or concealing the child. There may be both international and domestic aspects to child abduction.
According to the Children’s Law Reform Act (CLRA), which applies to Ontario, a child’s habitual residence may be defined as the place where a child resided with both parents, with one parent in accordance with a separation agreement, with one parent in accordance with implied consent or a court order, or with a person other than a parent for a significant period on a permanent basis.
The court where the child is considered to be habitually resident has the ability to protect the child by making decision regarding the child’s well-being. Criminal charges may also be laid in cases of local abduction. We can help you decide if this is an appropriate route to take.
Family court enforcement is another route that can be taken as an alternative to the criminal response when criminal charges are not considered appropriate, or in addition to criminal charges.
The Hague Convention on the Civil Aspects of International Child Abduction, which has been adopted by all Canadian jurisdictions, is the main international treaty that will assist parents whose children have been abducted to another country.
Article 3 of the Hague Convention states in part:
The removal or the retention of child is to be considered wrongful where:
a. It is in breach of rights of custody attributed to a person, an institution or any other body, jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b. At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Under Article 5 of the Hague Convention, the terms “rights of custody”, for the purposes of the Convention, shall include rights relating to the care of the child and, in particular, the right to determine the child’s place of residence.
Parental child abduction is one of the most challenging and emotional areas of family law. It is an extremely complex issue as it involves issues of jurisdiction, or which court has the authority to enforce a particular custody and access order. Our experienced child protection lawyers in Toronto can protect your rights and help ensure your child’s safe and immediate return. Hague Convention applications must be commenced on an urgent basis and with swiftness. Delay sabotages success. Our child protection lawyers in Toronto are prepared to drop everything to manage these urgent cases. We also have a lot of experience in these cases, having successfully won our cases both in the Provincial and Superior Courts. Call us immediately if these issues affect you and your child.