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Mobility Rights v. Custody and Access

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  • #16
    This truly is what makes family court so complex. While there are many variables to ecah families circumstances, defining laws which facilitate a threshhold is not absolute either, but what this does do is put a limitaion on families in court. The ultimate ket here is keeping families and especially kids out of Court, as defined by Gordon v. Goertz at paragraphs 134 and 135

    Paragraph 134:

    At the outset, it must be stressed that I do not suggest that such a principled approach overrides or replaces the best interests of the child as the ultimate test. It is rather a reinforcement of the best interests test and not a contradiction to it. It may well be that, in some circumstances, the custodial parent’s decision to
    relocate may not accord with the best interests of the child and, upon review of the impact of that decision on the child, a court may conclude that a variation of custody or access or, exceptionally, a restriction on the child’s mobility is in order.
    Quite the opposite from shifting the focus from the best interests of children, a principled approach, in adopting the best interests test as the guiding principle,provides much needed clarity and certainty in this difficult area of the law and minimizes the need to resort to protracted acrimonious negotiations or, even worse,traumatic and costly litigation which, ultimately, cannot but injuriously affect the children. In passing, it is interesting to note that similar rules which recognize the custodial parent’s prima facie right to move with the child have been judged consistent with the best interests of the child otherjurisdictions, such as the United States (see Bruch and Bowermaster, supra) and Australia (Eades, supra),1996 CanLII 191 (S.C.C where, like in Canada, all decisions affecting children are to be governed solely by their best interests.


    • #17

      Paragraph 135

      Under Carter v. Brooks, the fact-specific case-by-case approach to the best interests of the child test, the absence of guidelines and the inherent discretion it involves foster unpredictability and inconsistency in the application of the law which, in
      turn, encourages litigation. This uncertainty takes its toll on individual justice by favouring the party most willing to take the risks and best able to bear the financial and emotional costs of litigation rather than inducing reasonable settlements which
      are, in the final analysis, the most appropriate means of ensuring that the best interests of the child will be met. Contrary to my colleague, I believe that, by reducing the incentive for litigation, the incentive for settlement is increased, not
      conflict. Reference to “desperate parents” which might resort to “desperate measures in contravention of the law” (McLachlin J. at para. 38), is totally inappropriate, in my view, in a context where reasonable solutions are favoured rather than protracted litigation between parents who have the best interests of their
      children at heart. Indeed, while there may be diverging views on the preferable way of applying the best interests of the child test, as I observed earlier, one cannot but acknowledge the fact that ongoing parental conflict is not in the best interests
      of children. See Young, supra, at pp. 67-68 (per L’Heureux-Dubé J.); J. Wilson,Wilson on Children and the Law (1994), at p. 2.41.3; W. Glen How, “Young v. Young and D.P. v. C.S.: Custody and Access — The Supreme Court Compounds Confusion” (1994), 11 C.F.L.Q. 109, at pp. 125-26; McLeod, Annotation to MacGyver v. Richards, supra, at p. 436; Hovius, supra, at pp. 142-43; Department of Justice of Canada, Custody and Access: Public Discussion Paper, supra, at pp. 19-20; N. Bala and S. Miklas, Rethinking Decisions About Children: Is the “Best 1996 CanLII 191 (S.C.C Interests of the Child” Approach Really in the Best Interests of Children? (1993), at pp. 46-53.

      Defining a distance is not absolute, as in my case with my children in Michigan 100 miles or 160 km is the threshold but the law allows leeway IF the parties can amicably agree or the COurts override the threshhold decision.


      • #18
        Just so you can understand here is how the Michigan Law is stated:

        Act 91 of 1970

        722.31 Legal residence change of child whose parental custody governed by court order.
        Sec. 11.
        (1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued.
        (2) A parent's change of a child's legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4), permits, the residence change. This section does not apply if the order governing the child's custody grants sole legal custody to 1 of the child's parents.
        (3) This section does not apply if, at the time of the commencement of the action in which the custody order is issued, the child's 2 residences were more than 100 miles apart. This section does not apply if the legal residence change results in the child's 2 legal residences being closer to each other than before the change.
        (4) Before permitting a legal residence change otherwise restricted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in the court's deliberations:
        (a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
        (b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent's plan to change the child's legal residence is inspired by that parent's desire to defeat or frustrate the parenting time schedule.
        (c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child's schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
        (d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.
        (e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
        (5) Each order determining or modifying custody or parenting time of a child shall include a provision stating the parent's agreement as to how a change in either of the child's legal residences will be handled. If such a provision is included in the order and a child's legal residence change is done in compliance with that provision, this section does not apply. If the parents do not agree on such a provision, the court shall include in the order the following provision: “A parent whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the “Child Custody Act of 1970”, 1970 PA 91, MCL 722.31.”.
        (6) If this section applies to a change of a child's legal residence and the parent seeking to change that legal residence needs to seek a safe location from the threat of domestic violence, the parent may move to such a location with the child until the court makes a determination under this section.


        • #19
          And YES I do my homework and I have a great passion for LAe in regards to Children's Rights.


          • #20
            Downside I cannot type LOL....Law not LAe


            • #21
              The only thing I can say is that these laws in Michigan were put in place 41 yeas ago, because the conflict was recognized and adjusted accordingly.


              • #22
                Sorry for getting all legalise oneveryone.


                • #23
                  If anyone cares to know I have been doing extensive research on Relocation Issues in Child Custody Cases. YOu would be surprised at what I have found thus far. Several Psychological Studies as well as a book recently Published in the United States.....

         Relocation Issues in Child Custody Cases (9780789035349): Philip M. Stahl, Leslie M. Drozd: Books

                  The individuals that wrote this book were pyschologists that conducted child assessments in such cases for the last 13 years and based this book off of a Study done by ...Braver Ellman and Fabricius in 2003 which referenced a case in the United States: Marriage of Burgess (1996) 13 Cal.4th 25 , 51 Cal.Rptr.2d 444; 913 P.2d 473 [No. S046116. Apr 15, 1996.] and

                  Marriage of LaMusga (April 29, 2004). California Supreme Court, S107355, 32 C4th 1072, 12 CR3d 356, 88 P3d 81, FIRST ALERT #F-2004-1143

                  which are coincidently listed in a publication in March 1998 funded by Sttus of Women Canada's Policy Research Fund titled: Relocation of Custodial Parents: Final Report By Dr. Martha Bailey Faculty of Law, Queen's University and Prof. Michelle Giroux, Faculty of Law, Civil Law Section, University of Ottawa

                  Now here is the odd issue Within these studies everyone agrees a need for Change on these issues but since 1998 no further studies in Canada have been Conducted, and nothing has changed


                  • #24
                    Further studies have actually been conducted. Perhaps they have not been available to the general public, but there have been quite a few studies in recent years on mobility, on financial, and on divorce and the effect it has on children of divorce over their lifetime...

                    I am not a fan of the mobility clause. I find it unconstitutional for one parent to dictate where the other lives, but that is likely my personal bias from having a non-involved father and a mother that refuses access...why should either of those parents dictate location and mobility terms?


                    • #25
                      As for the change...unfortunately, until parents start sticking up for and fighting for their rights and their childrens' right en masse, we are too easily swept under the rug by the economy, by green issues, and by other more popular political issues that grab attention and effect more canadians' heartstrings and wallets.


                      • #26
                        I'm about to see the ramifications of mobility myself. Ex is moving to Bradford, was supposed to move down to Vaughan. DD will have to continue commuting to school permanently.

                        My plans to move to Vaughan are also on hold, as Lawyers bills are preventing me from being able to move. Can't afford to rent! The possibility to buy a home closer to Vaughan, but still in Brampton has come up, but this leaves DD commuting every day permanently.

                        It's hard to predict the future, so we haven't actually included a mobility clause per se. The order will determine that neither of us can change her school without written consent of the other. But that puts a big restriction on where I can live in the future... I guess it's what's best for her, at least right now. Just don't want to end up back at court in a couple years...


                        • #27
                          That's a challenge billie. When our kids were younger we pretty much knew what schools they would go to from elementary to high school and we had the school board send us detailed maps of the district for each school. We took that to our realtor and asked him to only show us houses within both districts. We didn't want to look at houses all over and fall in love with something outside the district, then have to choose between the house and the school. It took a lot of time - and patience for both us and the realtor - but we found the right place.


                          • #28
                            Originally posted by InterprovincialParents View Post
                            I find it unconstitutional for one parent to dictate where the other lives,
                            Couldn't disagree more.

                            When two people have a child together they make a commitment to each other that survives their breakup.

                            It isn't one parent dicatating to the other. It is the child's need that is being met.


                            • #29
                              I hear what DTTE is saying and agree. Mobility clauses do not restrict where a parent's may live, as an individual and their choice or chartered freedom remains. However, mobility clause, restricts where the child may live.

                              Billie, the prospect that you may face concerning the future, and mobility, is challenging but can be accommodated. I live in a different jurisdiction as my child, and exercise my child's custody and access rights to the tune of seven vehicles in six years. Despite the hurdles, Joint Custody and rubber stamp access is workable and somewhat suggests my continued commitment towards my own child.


                              • #30
                                Thanks LV. I know it is workable, I just wish it wasn't so far. I'm more than willing to continue to commute so that she spends equal time with both her parents. It's just difficult.


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