“Courts are cautious about permitting temporary moves in mobility cases, because if later reversed, it will result in further disruption to the child. When determining whether to permit the relocation of a child on a temporary basis, there are some additional factors to consider. These factors were set out in Plumley v. Plumley, 1999 CanLII 13990 (Ont. S.C.), at para.17:
a. A court will be more reluctant to upset the status quoon an interim basis and permit the move when there is a genuine issue for trial.
b. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial, or the best interests of the children might dictate that they commence school at a new location.
c. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.
The court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate: Divorce Act, s. 16.92(2). In Scott v. MacLean, 2020 ABCA 173, 7 Alta. L.R. (7th) 225, at para. 11, the Alberta Court of Appeal explained:
The law is clear that the options being considered are not the move versus the status quo. The parent’s move is happening, or has happened. As was noted by this court in MacPhail at paras 44-45, “Canadians have the right to choose to separate and divorce, and they have the right relocate”; it not for the court to opine that it would be better if things remained the same. The issue the court must grapple with is: in which of the new locations, and with which parent, are the best interests of the children met.
Pursuant to s. 16.93(2) of the Divorce Act, the father has the burden of proving that the relocation would not be in the best interests of the child because the child spends the vast majority of his time with the mother. However, under s. 16.94, a court may decide not to apply s. 16.93(2) if the order being requested is an interim order. Further, where there is a pre-existing interim parenting order, the court may also decide that both parties have the burden of proving whether, or not, the relocation is in the best interests of the child.”