Custody and Access– Mobility

After separation when one parent has custody of the children, he or she may decide to relocate for a considerable distance from the jurisdiction where both parents are residing with the children for various reasons notably, employment opportunities, relationship or family support.

Often the access parent opposes the move to protect his/her access rights because the move often times interferes with the access schedule by reducing the frequency of access and increasing access costs.

The test to assess the move is based on what is in the best interest of the children.

The leading case in this area is the Supreme Court of Canada’s decision of Gordon v. Goertz, [1996] S.C.J. No.52, 19 R.F.L. (4th) 177 (S.C.C.) which sets out the following factors to be considered by the court when deciding on mobility cases, including:

  1. The existing custody and access arrangements and relationships between the child and each parent;
  2. The desirability of maximizing contact between the child and both parents;
  3. The views of the child;
  4. The Custodial parent’s reason for moving, but only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
  5. The disruption to the child of a change in custody; and
  6. The disruption to the child consequent on removal from family, schools and the community he or she has come to know.

In a British Columbia decision of One, v One, [2000] B.C.J. NO. 2178, 81 B.C.L.R. (3d) 315, 2000 BCSA 1584 (B.C.C.A), The Honourable Mr. Justice Burnyeat reviewed various decided cases that have produced the following 12 factors which have been considered by the courts since Gordon v Goertz in deciding what is in the best interests of the children:

(A)  PARENTING CAPABILITIES OF AND CHILDREN’S RELATIONSHIP WITH PARENTS AND NEW PARTNERS:

Morrison v. Morrison, 2000 BCSC 1017 (CanLII); Henderson-Thomson v. Thomson, 2000 BCSC 1273 (CanLII); Creighton v. Creighton, [1997] B.C.J. No. 2081 (QL) (B.C.S.C.);

(B)  EMPLOYMENT SECURITY AND PROSPECTS OF EACH SPOUSE AND, WHERE APPROPRIATE, THEIR PARTNER:

Kennedy v. Kennedy, [1997] B.C.J. No. 2572 (QL) (B.C.S.C.); Wilson v. Daffern, [1998] B.C.J. No. 2899 (QL) (B.C.S.C.); Vinderskov v. Vinderskov, 2000 BCSC 744 (CanLII); Gabriel v. Gabriel, 2000 BCSC 587 (CanLII); Lowther v. Ontiveros, [1998] B.C.J. No. 2650 (QL) (B.C.S.C.); Dhaliwal v. Dhaliwal, [1998] B.C.J. No. 129 (QL) (B.C.S.C.); Lloyd v. Earle, [1996] B.C.J. No. 2274 (QL) (B.C.S.C.); Campbell v. Campbell, [1996] B.C.J. No. 1235 (QL) (B.C.S.C.); Niewerth v. Niewerth, [1997] B.C.J. No. 1091 (QL) (B.C.S.C.);

(C)  ACCESS TO AND SUPPORT OF EXTENDED FAMILY:

Kennedy v. Kennedy, supra; Poirier v. Heron, [1996] B.C.J. No. 1045 (QL) (B.C.S.C.); Keil v. Wrightmeyer, 2000 BCSC 504 (CanLII); Wilson v. Daffern, supra; Lichtenwald v. Lichtenwald, [1999] B.C.J. No. 2137 (QL) (B.C.S.C.); Brekke v. Brekke, [1999] B.C.J. No. 139 (QL) (B.C.S.C.); Henderson-Thomson v. Thomson, supra; Vinderskov v. Vinderskov, supra; Lowther v. Ontiveros, supra; Proctor v. Proctor, [1998] B.C.J. No. 2171 (QL) (B.C.S.C.); Western v. Young, [1998] B.C.J. No. 1686 (QL) (B.C.S.C.); Dhaliwal v. Dhaliwal, supra; Campbell v. Campbell, supra; Niewerth v. Neiwerth, supra;

(D)  DIFFICULTY OF EXERCISING PROPOSED ACCESS AND QUALITY OF PROPOSED ACCESS IF MOVE IS ALLOWED:

Kennedy v. Kennedy, supra; Poirier v. Heron, supra; Keil v. Wrightmeyer, supra; Wilson v. Daffern, supra; Mammon v. Mammon, [1999] B.C.J. No. 2343 (QL) (B.C.S.C.); Brekke v. Brekke, supra; Vinderskov v. Vinderskov, supra; Doro v. Doro, [1997] B.C.J. No. 2407 (QL) (B.C.S.C.); Lloyd v. Earle, supra; Creighton v. Creighton, supra; Campbell v. Campbell, supra; Niewerth v. Niewerth, supra;

(E)  EFFECT UPON CHILDREN’S ACADEMIC SITUATION:

Keil v. Wrightmeyer, supra; Morrison v. Morrison, supra; Lichtenwald v. Lichtenwald, supra; Brekke v. Brekke, supra; Vinderskov v. Vinderskov, supra; Gabriel v. Gabriel, supra; Proctor v. Proctor, supra; Niewerth v. Niewerth, supra;

(F)  PSYCHOLOGICAL/EMOTIONAL WELL-BEING OF CHILDREN:

Gabriel v. Gabriel, supra; Robinson v. Beertema, [1996] B.C.J. No. 1498 (QL) (B.C.S.C.); Niewerth v. Niewerth, supra; Kennedy v. Kennedy, supra; Henderson-Thomson v. Thomson, supra;

(G)  DISRUPTION OF CHILDREN’S EXISTING SOCIAL AND COMMUNITY SUPPORT AND ROUTINES:

Keil v. Wrightmeyer, supra; Morrison v. Morrison, supra; Brekke v. Brekke, supra; Vinderskov v. Vinderskov, supra; Lowther v. Ontiveros, supra; Proctor v. Proctor, supra; Doro v. Doro, supra; Lloyd v. Earle, supra; Creighton v. Creighton, supra; Campbell v. Campbell, supra;

(H)  DESIRABILITY OF PROPOSED NEW FAMILY UNIT FOR CHILDREN:

Henderson-Thomson v. Thomson, supra; Lloyd v. Earle, supra; Creighton v. Creighton, supra;

(I)  RELATIVE PARENTING CAPABILITIES OF EITHER PARENT AND RESPECTIVE ABILITY TO DISCHARGE THEIR PARENTING RESPONSIBILITIES:

Vinderskov v. Vinderskov, supra; Doro v. Doro, supra; Dhaliwal v. Dhaliwal, supra; Creighton v. Creighton, supra;

(J)  CHILD’S RELATIONSHIP WITH BOTH PARENTS:

Kennedy v. Kennedy, supra; Wilson v. Daffern, supra; Mammon v. Mammon, supra; Simpson v. Simpson, (1997) Vancouver DO99652 (B.C.S.C.); Morrison v. Morrison, supra; Lichtenwald v. Lichtenwald, supra; Brekke v. Brekke, supra; Henderson-Thomson v. Thomson, supra; Vinderskov v. Vinderskov, supra; Lowther v. Ontiveros, supra; Western v. Young, supra; Dhaliwal v. Dhaliwal, supra; Lloyd v. Earle, supra; Niewerth v. Niewerth, supra;

(K)  SEPARATION OF SIBLINGS:

Wilson v. Daffern, supra;

(L)  RETRAINING/EDUCATIONAL OPPORTUNITIES FOR MOVING PARENT:

Western v. Young, supra.

Lastly it should be noted that cases involving custody, access and mobility rights are largely fact driven making it challenging to predict the outcome of a particular mobility case.

Jane Mukongolo is a divorce lawyer/family lawyer practising in Toronto and an active blogger on family law issues at www.jnmlaw.com