"My ex-wife has custody of our children, and she wants to move across the country with them. What can I do about it?"

This question delves into the area known as mobility. I have handled numerous cases involving mobility in the Ontario Superior Court of Justice as well as other provincial courts across Canada. Additionally, this is an ever-increasing presenting issue in mediation, arbitration, and collaborative law. Mobility is commonly viewed by clients as the most challenging type of family dispute, as it projects a radical change of the status quo -- often in the context of a well-functioning arrangement. The good news is that a court or negotiation review remains available based on a material change of circumstances. Mobility is often framed as an immediate ground of material change in domestic contracts which further provides advanced notice of the intended relocation. So you will have the means to challenge the proposed relocation.

Adult Canadians are constitutionally free to travel and relocate within our country. However, the prospective move of the children is not guaranteed. The case law is well settled (at the level of the Supreme Court of Canada) in that a fundamental ingredient in a permissible relocation plan relates to the rights of the children's access to the other parent. (i.e., the access parent). If it is an artificial plan devised to defeat the rights of access, the move would have great difficulty in passing this lawyer's challenge and judicial scrutiny.

Nigel Macleod practises family law, mediation, and Collaborative Divorce in Ottawa. He can be reached at (613) 745-3333. View his website and Divorce Magazine profile.