What is "Mobility"?
"Mobility" in family law refers to the authority of a parent to move the child's residence, especially if it is far enough away to limit the other party's involvement with the child. 

Often such moves are motivated by:

• employment opportunities
• the custody parent's new partner - employment or existing residence
• the residence of family or friends who can provide assistance to the custody parent
• immigration issues
• anger at the access parent and a desire to cut off access

This is one of the most difficult types of family disputes for courts to resolve.

How is Mobility Decided?
Like all disputes regarding children, it is decided based on the "best interest of the child".

A court (or indeed the parents) must balance:

• the benefit to the child from any improved conditions in the new location and of keeping the custodial family together; and
• the harm done to the child's relationship with the access parent.

There is often no good solution - only the least worse option for the child. 

Sometimes the harm done to the access relationship can be reduced.  Even when allowing the move, a judge may impose conditions:

• extended visits with the access parents
• electronic communications, such a phone calls, email, video conferencing, etc.
• reduction in support because of the cost of exercising access (given the distance)

The court will look at:

• the attitude of the custody parent in facilitating access
• the access parents commitment and history of exercising access

An existing order for "joint custody" is a factor but does not, in itself, resolve the dispute.

Each case must be decided on its own facts.  Judges may weigh the facts differently.  Courts are taking somewhat different positions.  The outcome is hard to predict.

Cann't the Custody Parent Just Move?
Even if the parent has a custodial order and with no restrictions on moving, changing the child's residence without a court order or agreement of the other parent may be dangerous.  If the order contains an access order, the change of residence may mean a breach of the access order.  The custodial parent can be found in contempt of the court order.

In some circumstances, changing the child's residence may result in a criminal charge of child abduction.

If a custodial parent changes the child's residence unilaterally (without consent or a court order), a judge may order the child to be returned to the original location pending the resolution of the mobility dispute.  A court can temporarily change who has custody, while the dispute is dealt with.

Immigration Issues
A child born in Canada has the right to remain in Canada.  But one or both of their parents may not have this right.  Immigration may look at humanitarian factors before removing someone from Canada.  Having a child in your care who has a right to remain in Canada is a factor, but parents can be ordered deported. 

A person needs either the consent of the other parent or a court order for a child to travel outside Canada (see article).  So, if deported, you may have problems taking our child with you.

If you decide to leave the child in Canada in the care of someone else, a formal agreement or court order is advisable to avoid unnecessary complications regarding decision-making for the child. 

If there is a dispute with the other parent, a judge may have to make a decision between each parent's plan.  If one parent must return to a country that is dangerous, where the standard of living will be very low, or if there are very limited opportunities there, this may be a major factor in deciding who should have custody.

To give custody to a non-parent, a court order is required.  A written agreement is not enough.

The other option, an extreme one, is to surrender the child to Children's Aid (a child protection agency).  This may be the only option if you are being deported to a country where the child will be in danger.

If you have immigration problems, get advice from a lawyer who practices immigration law! If you need a family court order, this can take time - do not leave it to the last minute.

Do You Need a Lawyer?
Yes, definitely.   This is can be very important, very contentious, and very complicated.

Get careful legal advice before you move a child.  Do this as soon as possible.  It may take a long time to resolve a mobility dispute.  These cases often go to trial.