A Study of Post-Separation/Divorce Parental Relocation

Executive Summary

Purpose of the Project

Cases that raise the issue of whether parents can relocate with their children after separation or divorce are among the most contentious and difficult cases in the family justice system. The cases have a profound impact on the lives of parents and children. They are also very challenging for judges, lawyers and the justice system as the leading precedents and legislation provide little direction for many situations, the social science literature is limited and provides little real guidance for many of the issues faced by decision-makers and policy-makers, and very little statistical data are available.

In December 2010, the Department of Justice Canada issued a Request for Proposals for a small research project on parental relocation post separation or divorce. In March 2011, the Department of Justice contracted with the Canadian Research Institute for Law and the Family (CRILF) to undertake a review and report on Canadian and international research and literature on relocation, a search for any relevant data in Canadian government data banks, and an analysis of trends in reported Canadian judicial decisions.

Methodology

Several interrelated research tasks were completed for this study. They included: locating and reviewing social science literature on parental relocation; locating and undertaking an analysis of reported Canadian cases on parental relocation; and reporting any relevant information from existing Canadian government data banks. This material was analyzed, synthesized and organized into this report, which concludes by identifying gaps in the literature and suggesting research that could be undertaken to address those gaps.

Summary of Findings

There has been a slight increase in the number of reported Canadian relocation cases over the past decade, but the relocation "success rate" has remained essentially constant at just above 50 percent.

Most researchers now accept that post-separation relocation is a "risk factor" for children, and recognize that on certain measures, in general, children who relocate after separation have more difficulties than children who do not relocate. There is, however, no research to establish that negative outcomes are caused by the relocation, or that the children who in fact relocated would have been better off had they not relocated. The studies of children and young adults who relocated did not assess whether there was an option of not relocating, let alone attempt to determine what the effects of not relocating would have been. Further, the existing research suggests that most children who relocate after separation adjust reasonably well and do not appear to suffer significant long-term negative effects.

There is a very strong gendered element to relocation cases; the parent seeking to relocate is almost always the mother, though in the relatively small number of reported Canadian cases where fathers seek to relocate with a child, their success rate is not dissimilar to mothers.

In the literature, the major reasons for wanting to move included wanting to be closer to family, to be with a new partner, for financial reasons, and to escape violence. The CRILF survey of Canadian family lawyers found that the most common reasons for relocation requests were to be with a new partner, for an employment opportunity, or to be closer to family/friends. The review of Canadian cases found that the most common reason for wanting to relocate was improved economic or job prospects, followed by the mother wanting to move for a new intimate relationship, and the custodial mother seeking social and emotional support from her family.

Relationships with the "left behind" parent will be affected by relocation, though the nature and extent of the effect will depend on many factors, including the distances involved and resources of the parents for travel, and of course the nature of the pre-existing relationship between that parent and the child.

For many separated and divorced parents, children may be "anchors," keeping them living in relatively close proximity. According to the 2006 Canadian census, separated and divorced people who moved were considerably more likely to stay within the same municipality than were married people. Likewise, the 2001 General Social Survey data found that almost three-quarters of non-residential parents lived within 100 km of their children, and the 2006 General Social Survey data found that over one-half of non-residential parents reported that their child lived within 10 km, and another quarter said their child lived within 50 km. Only 8 percent of non-residential parents reported that their child lived 1000 km away or further.

The analysis of Canadian cases found that the rate of successful applications for international moves is actually higher than for national moves; this may be explained by the differences in the nature of the international cases and is consistent with findings from studies in other countries.

The literature suggests that significant contact with the non-moving parent is likely to be disrupted if there is relocation and there has been a high conflict parental separation, or there is family violence, parental mental health or substance abuse issues. The review of Canadian cases found that custodial mothers have a greater chance of gaining permission for relocation if there are substantiated allegations of family violence.

Custodial mothers had a greater chance of gaining judicial permission for relocation if they had sole physical custody. Conversely, in cases where there was joint physical custody (each parent has child at least 40 percent of the time), the court was significantly more likely to deny permission to relocate.

The wishes of children were only mentioned in about one-quarter of the reported cases, although in about one-third of these cases, the children were ambivalent or did not express clear views. When children express clear views, judges tend to give considerable weight to their wishes regarding relocation, though they are not always followed.

The courts frequently expressed condemnation of parents who took unilateral action to move a child without the agreement of the other parent or approval of a court. However, custodial parents (usually mothers) were successful in almost half of the cases where they "moved first and asked permission later," as judges took account of all of the circumstances of the case, including whether it was in the best interests of the children to face the instability of another move, this one a return to their place of previous residence.

The Challenges of Law Reform for Relocation Cases

Relocation cases represent a significant portion of all litigated family law cases, and as discussed in this report, they seem to be growing in number and are more difficult to settle without a trial than most other cases. Part of the challenge in settling is a reflection of the inherent difficulty in finding a "middle ground" in these situations. The high degree of discretion and lack of direction afforded to trial judges by the best interests of the child test of Gordon v. Goertz may also make outcomes less predictable and settlement more difficult.

There continue to be calls for reform of the laws governing relocation of children if one parent wants to move with the children. An important motivation for many reformers is to provide greater direction for judges, lawyers and parents to facilitate settlements and adjudication. Other reformers, however, want to see substantive changes in the law, typically seeking either to increase the rights of parents with primary care (mothers) to relocate, or to increase the rights of parents who do not have primary care (fathers) to prevent a move in order to maintain their relationships with their children.

It has been proposed by prominent Toronto family lawyer, Phil Epstein, that a process similar to that used for the development of Spousal Support Advisory Guidelines could be used to develop what might be called Relocation Advisory Guidelines (RAGs). He proposes that a committee of lawyers, judges, government policy makers and academics draft working papers and circulate them for consultation with the Bar, Bench and interested members of the public. Over time, this work might lead to the development of a set of RAGs to reflect existing jurisprudence and help to resolve cases. As with the SSAGs, this project would be an advisory codification of existing law rather than an effort to change the law.

The discretionary, individualized nature of the "best interests test" may appear to make relocation a "ruleless" area. However, the analysis of the Canadian case law in Chapter 3.0 of this report suggests that this is not in fact a totally unpredictable area. Although the failure of the courts to articulate clear rules can make it difficult to see the patterns in the jurisprudence, some broad trends are apparent. An awareness and understanding of the social science literature and of the patterns and trends in case law may help practitioners, including judges, lawyers, mediators and assessors, to more effectively and efficiently resolve relocation cases. This type of knowledge is also important for policy-makers and legislators who may seek to address these issues.

Suggestions for Future Research

There is a growing body of social science research on the effects of parental relocation on children, but there is clearly a need for more and better social science research. The review of the literature and the examination of existing Canadian data on parental relocation for this project revealed limitations to the presently available information that leads to suggestions for future research. Such research could inform the work of judges, lawyers, mediators and assessors. This type of research could also be important for those involved in any policy development with respect to relocation, and for those responsible for the development of family justice services. Further, such research would be important for parents who may be facing the potential of relocation post-separation or divorce, and of course ultimately to their children.

The analysis of the reported Canadian case law in this report provides some valuable information, but it was limited to decisions written in English. Undertaking a similar study of cases written in French would complete a national picture of relocation case law.

While Canada has several national surveys that collect data on families, e.g., census, the General Social Survey, and the National Longitudinal Survey of Children and Youth (NLSCY), none of these large-scale surveys collect data directly on the issue of parental relocation. It is not known, for example, how frequently people move, nor can it be determined whether moves are directly related to relationship breakdown. While the census data provide information on both marital status and mobility, the data are correlational, and it is impossible to determine if a move was a result of a separation or divorce. Census data are available on individuals who immigrate to Canada, but not on individuals who move out of the country. One possibility for addressing this gap is to add questions to existing national surveys that would collect data specifically related to mobility following relationship breakdown.

Another major gap in the literature on parental relocation is the lack of information on the effects of mobility on children, especially in Canada. Ideally, research in this area should collect data from both parents and children, and should be longitudinal in design.

While relocation cases do not account for a substantial proportion of all family law disputes, they are difficult to settle and accordingly take up a disproportionately large amount of court time as well as private resources for lawyers and litigation expenses. Judges have little reliable social science research to rely on when making their decision and there are virtually no Canadian studies on the topic. The mobility data that are currently available in Canada provide general trends for the population but are inadequate for examining this topic in detail. Should Canada decide to conduct further research in this area, there are good international examples that could be adapted to the Canadian context.

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