What is the difference between custody and mobility for a mother who is seeking to change residence?
British Columbia, Canada
The following excerpt is from S. (M.J.) v. S. (L.), 2001 BCSC 820 (CanLII):
I will approach this case by determining custody first. I then turned to the issue of the change in residence. This is an application for custody in the first instance, not an application to vary because a potential move has changed the circumstances. I recognize that other courts have solely determined custody in light of the proposed move, and then granted custody on that basis. This is based on the view that courts should not decide issues such as the place of residence. [See Sworyk v. Sworyk [2001] O.J. No. 532 Q.L. Ont. Sup. Ct.]. However, in this case, the mother will not move if she is not permitted to take the children. Thus, in this case, it is logical to decide the issue of custody first. The discussion between custody and mobility overlaps because of the consideration of “best interests of the children”.
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