When will the court grant an original mobility application against a variation application?

When considering an original mobility application, as opposed to a variation application, Bateman J.A. in Burgoyne v. Kenny, 2009 NSCA 37 (CanLII) indicated that the relevant considerations are limited to what is in the child’s best interest considering all of the relevant circumstances relating to the child’s needs and his parents’ ability to meet those needs. According to Justice Bateman the Court is to consider: a) the desirability of maximizing contact between the child and both of his parents; b) the child’s views, if appropriate; c) the Respondent’s reasons for moving, only in the exceptional case where it is relevant to her ability to meet the child’s needs; and d) the disruption to the child resulting from his removal from family, school and the community he’s come to know.

It is clear that the principles set out in Burgoyne v. Kenny (supra) apply to applications made under provincial legislation such as the Maintenance and Custody Act (supra) and are not limited just to the Divorce Act (supra).