Jill has a new spouse who lives
in Kingston. They have been in a long distance relationship for two years and
Jill is ready to move on with her life and move in with him. Jill has had primary custody of the children
since the separation (Jack has them every other weekend as well as every
Tuesday and Thursday, from after school to 8 p.m.), and feels that since she
has all the parenting responsibilities, she should be able to take the children
with her. After
all, Kingston is only a two hour drive from Ottawa, and Jack has not been
consistent in taking the children with him every Tuesdays and Thursdays due to various
work commitments. However, when Jack
heard that Jill wanted to move the children to Kingston, he went through the
roof! He told her that he would not consent to the move and that he would take
whatever action is necessary to stop her. Time is pressing, as Jill has
committed herself to the purchase of a home in Kingston and school starts in
September. However, she knows from speaking with a friend that it can take
months, if not years, for a family case to be heard by the court and a final
decision made by a judge. She wonders if there is a quicker way to proceed…
The court process is usually long
and issues such as the relocation of children away from one parent (called a “mobility
case”) are very hard to decide fairly without a full hearing by way of a trial.
However, in situations of urgency like Jack and Jill’s, the court can be asked
to make an interim order allowing the children to move, before a trial is held.
The proceeding is called a “motion” and the
mobility issue may be determined by a judge based on written evidence only
(affidavits), if the circumstances justify it.
In the context of an interim
mobility motion, the judge will try to determine what is in the best interests
of the children, from the perspective of the children (and not the parents)
The relocating parent will have to establish that there is “compelling
circumstances” justifying the move on a temporary basis, and that there is a
“strong probability” that he/she will be successful at trial. However, when the
evidence provided by the parties does not show a clear trial outcome in favour
of one parent, it is very unlikely that
the motion judge will authorize the move on an interim basis. As such, moving with the children away from
one parent is not a last minute decision to be made. It is important to plan ahead to avoid heated
and costly court battles!
