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New SCC case on Mobility

Anonymous 2017
   Edmonton Region, Alberta


https://SCC-csc.lexum.com/SCC-csc/SCC-csc/en/item/19396/index.do

Five considerations that bear upon the best-interests-of-the-child analysis arise in this case: (i) the application of Gordon to shared parenting arrangements and the so-called “great respect principle”; (ii) a moving parent’s reasons for relocation; (iii) the “maximum contact principle”; (iv) a moving parent’s testimony about how the outcome of the application will influence their decision to relocate; and (v) the impact of family violence.

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The crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary.


...In addition to the factors that a court will generally consider when determining the best interests of the child and any applicable notice requirements, a court should also consider:
• the reasons for the relocation;
• the impact of the relocation on the child;
• the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
• the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
• whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
The court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate. These factors are drawn from s. 16.92(1) and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years.


1 22 months ago

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