A Study of Post-Separation/Divorce Parental Relocation

1.0 Introduction

1.1 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 (or mobility) 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.

The research team located general information on the extent to which Canadians move and patterns of relocation in Canada. The team focused on finding research studies that address the effects of relocation on children and factors that might moderate any potential negative effects for children. The specific focus was a more detailed examination of research on relocation post-separation and divorce – why people move, the effect of those moves on the parents and children, including implications for contact between parents and children, and particularly the effects on child adjustment.

This report presents the findings of the literature review, the analysis of reported cases, and available Canadian data. While the report does not make policy recommendations, it does identify policy, legal and research issues that might be addressed. Further, the report includes a review and discussion of gaps in the available Canadian data and makes suggestions for research that could be undertaken to fill those gaps.

The analysis of reported cases in this report provides a summary of the development of jurisprudence in Canada on relocation. It is not, however, intended to be a traditional legal analysis, but rather uses the reported cases as a data set that can be analyzed to ascertain whether there are patterns in the types of cases that are litigated and in how the courts deal with relocation cases.

1.2 Methodology

Several interrelated research tasks were completed for this study. They include: locating and reviewing social science literature on parental relocation; locating and undertaking a statistical analysis of reported Canadian case law on parental relocation; and reporting on relevant information from existing Canadian government data banks. This material was analyzed, synthesized and organized in this report, which also identifies gaps in the literature and suggests research that could be undertaken to address those gaps.

1.2.1 Literature review

The first major task for this project was a review of the Canadian and international social science literature on parental relocation after separation or divorce. While the existing child development literature and related research on the effects of parental relocation is important for the work of the courts and lawyers, it is often difficult to apply and sometimes not used appropriately. Further, most of the central questions related to the effects of parental relocation after separation have not yet been adequately addressed by methodologically sound research. The literature review includes a discussion of methodological limitations of the studies presented.

1.2.2 Analysis of reported Canadian cases

The second major task was to locate and analyze the reported Canadian decisions on parental relocation rendered between January 1, 2001 and April 30, 2011. Searches were conducted using the Quicklaw and Westlaw data bases, and over 700 cases were found and analyzed. A traditional legal analysis and summary of the law was beyond the scope of this project; rather, the decisions were statistically analyzed to better understand the reasons for and nature of parental relocation after separation, and the factors that are significant for the courts in determining whether relocation is permitted.

1.2.3 Identifying existing Canadian data

In consultation and with the support of the Project Authority, the research team explored the possibilities for accessing information related to parental relocation following separation or divorce in federal data banks. While the National Longitudinal Survey of Children and Youth (NLSCY) has data on post-separation parenting, there is no information on parental relocation. The General Social Survey (GSS) has a family cycle and collects data on post-separation child custody and contact, but it does not include questions on relocation. Some limited information on the distance non-custodial parents live from their children is collected in the GSS, and these data are included in this report. Some limited relocation data are collected in the census conducted by Statistics Canada every five years, and these data were examined to provide a general indication of overall trends in mobility.

The Survey of Maintenance Enforcement Programs (SMEP) collects some data on the residence of payors and recipients. It is possible that a secondary analysis of these data might provide some information on parental relocation, but the data could not be accessed within the timelines of this project.

Lastly, some limited data on this topic were collected by CRILF at the Federation of Law Societies of Canada's National Family Law Programs in La Malbaie in 2004 and Kananaskis in 2006 (Paetsch, Bertrand, & Bala, 2006), and are included in this report.

1.3 Limitations

The purpose of this project was to explore and report on the availability of Canadian research and data on familial relocation, particularly as it applies to post-separation or divorce situations. The Canadian literature is sparse and few social science research studies have been conducted in this area. Most of the information presented in the literature review is based on international studies.

Unfortunately, the large-scale Canadian surveys such as the census, the GSS, and the NLSCY do not collect data directly on parental relocation following separation and divorce. Some data are available on marital status and mobility, but it is not possible to link relocation directly with changes in marital status. Data were examined to the extent possible, but caution should be used when interpreting these data.

The case law analysis and literature review considered only material written in English.

1.4 Organization of the report

Chapter 2.0 contains the literature review, and Chapter 3.0 presents the results of the analysis of reported Canadian cases written in English on parental relocation. While limited, the available Canadian data on post-separation parental mobility were examined and are presented in Chapter 4.0. The results of this project are summarized and discussed in Chapter 5.0, along with conclusions and recommendations for future research.