Parental Mobility Rights in Ontario

Mobility Rights
Some of the most difficult parenting disputes arise when one parent wishes to relocate with their child.  The law of parental mobility rights in Ontario currently states that a parent can move with their child if the move will not affect the other parent’s access. If the relocation would affect access, the parent needs the agreement of the other parent or a court order that varies such access. Thus, the parent who seeks to relocate with the child will have to convince the judge that the move is in the best interest of the child.

Gordon v. Goertz (1996) Supreme Court of Canada 

As with all custody and access issues, the court’s paramount concern is to choose the parenting plan that is sincerely designed to serve the best interest of the child. The leading case on the best interests of the child test in the context of a parent’s mobility rights is Gordon v. Goertz, a 1996 Supreme Court of Canada (SCC) ruling. This case arose as an application to vary an existing access plan by a custodial parent seeking to move outside of Canada. The SCC held that “the parent applying for a change in the custody or access order must meet the threshold test, which requires a material change in the circumstances affecting the child. For that threshold to be met, the judge must be satisfied of three things:

  1. There must be a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child;
  2. The change must materially (significantly) affect the child, and;
  3. The change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

An application to vary custody cannot serve as an indirect route of appeal from the initial custody order. The judge must assume the correctness of the initial order and consider only the change in circumstances since the order was issued.

Once the Applicant has discharged the burden of showing the elements listed above, both parents bear the burden of demonstrating where the best interests of the child lie. In assessing the best interests of the child, the Court conducts a fresh inquiry by considering the following factors that apply to mobility rights disputes arising at first instance.

Factors:

  1. The existing custody arrangement and relationship between the child and the custodial parent;
  2. The existing access arrangement and the relationship between the child and the access parent;
  3. The desirability of maximizing contact between the child and both parents; (The “maximum contact” principle mentioned in ss. 16(10) and 17(9) of the Divorce Act is mandatory but not absolute and the judge is only obliged to respect it to the extent that such contact is consistent with the child’s best interests).
  4. The views of the child (this factor increases in weight with a child’s age). The child’s age may be a significant factor for not permitting the move where the child is of such a young age that he/she has no capacity for wishes.
  5. The custodial parent’s reason for moving is a factor ONLY in the exceptional case where it is relevant to the parent’s ability to meet the child’s needs, or conversely, where a parent’s reason fails to take into consideration the Best Interest of the Child, and/or is founded by malice. (Example: If a parent chose to move with the goal of undermining the relationship of the child and the other parent, it would weigh against the Court permitting the move). Otherwise, the moving parent’s reason(s) for wanting to move are irrelevant;
  6. The disruption to the child of a change in custody;
  7. The disruption to the child consequent on removal from family, schools, and community;
  8. The custodial parent’s views, but views are not determinative.

 

Berry v. Berry (2011) Ontario Court of Appeal 

In 2011, the Ontario Court of Appeal (OCA), in Berry v. Berry, reiterated and followed the same factors and considerations as were set out in Gordon v. Goertz in coming to a decision on whether or not the mother should be permitted to relocate with her child. (Berry v. Berry, 2011 ONCA 705). Unlike Gordon v. Goertz, there was no need for the court to be satisfied that the three elements required by the threshold test had been met, since there had not been any prior custody or access orders.

The father and mother were loving, caring, and engaged parents of a seven year old boy, who suffered from serious health issues and who had special medical needs. The mother sought to permanently relocate with the child away from Toronto, where the child had lived all of his life, to Kingston, where she had family and claimed would have greater support. The trial court judge, granted the mother permission to relocate with the child, and as such, the father appealed.

The OCA held that the trial judge made an error of law in coming to his decision to allow the mother to relocate with her child. This decision was contrary to the principles developed by the SCC in Gordon v. Goertz, by being parent centered, instead of child, centered. The trial judge made an error in law, by failing to follow the correct interest test, that being The Best Interest of the Child, and not the primary parent’s. By erroneously following such an approach, the trial judge essentially denied maximum contact between the child and his father. (An important factor in deciding whether or not to grant relocation). The trial judge mistakenly regarded the sole issue to be, which of the two conflicting parenting plans ought to be given effect. The OCA dismissed the trial judge’s holding, and correctly applied the child-centered principles, as developed by the SCC in the Gordon v. Goertz, and rejected the mother’s mobility application.

In its application of the principles/factors set out in Gordon v. Goertz, the OCA has sent a clear message that mobility issues will be decided, not on the basis of a parent’s preference or convenience, but rather having regard to the Best Interests of the Child. In following Gordon v. Goertz, a parent’s reasons for moving ought only to be considered in those exceptional circumstances where it impacts on his/her ability to meet the child’s needs, and, in the rare instances where it is relevant.

A.(G.) v. B(K.) (2014) Ontario Court of Justice 

In highlighting the trend by lower courts to follow Gordon v. Goertz factors to consider, a fairly recent, 2014 Ontario Court of Justice (OCJ) decision on mobility rights, further demonstrates this trend. A.(G.) v. B.(K.), was a case where a custodial mother wished to relocate from Toronto to Washington D.C. in order to marry the person with whom she has been in a relationship for a long period of time. Due to the children being 15 and 13 years of age, the trial judge believed that they were of appropriate age to inquire as to their wishes. The judge along with a children’s lawyer and court staff, sat down and interviewed each child on their thoughts and wishes in relation to a possible relocation. The judge made it very clear that their wishes and preferences would be taken into account along with other factors and information gathered from their parents and other persons about what arrangement(s) would be in their best interests.

Initially the mother could not relocate because of a prior consent order, but because the court was satisfied based on the high-conflict circumstances that existed, that there had been a number of material changes in circumstances that warranted a fresh look into this case. The fresh look and testimony of the two children, along with other factors, resulted in the prior order being varied, and the relocation being permitted.

Summary of Parental Mobility Rights in Ontario

The factors listed are applied on a case-by-case basis in matters involving mobility rights. A court will resolve a mobility dispute based on the factual circumstances at the time of the proposed move. Furthermore, is clear from case law, presented in the above case examples, that restrictive covenants providing that a child may only be relocated with the consent of both parents contained in prior agreements, or by a prior court order, are not necessarily determinative.

However, the law of parental mobility rights remains discretionary when it comes to deciding whether or not a custodial/primary parent will be permitted by the court to relocate with their child upon a challenge brought by the other parent. Such wide discretionary powers cause a great deal of uncertainty and inhibit a lawyer’s ability to predict the outcome in a particular case. As such, in Ontario, there exists a strong movement by legal professionals in the area of family law, for the establishment of some sort of enumerated guidelines or legislation (that other provinces, namely British Columbia have established). The existence of having enumerated factors/considerations, and not only case precedents, would eliminate such vast judicial discretion as well as creating more predictable outcomes.

For more information about parental mobility rights in Ontario, or about obtaining a divorce in Ontario, please contact our Toronto divorce lawyer.

NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.

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