In a decision in which a Father sought a court order forcing the Mother of his child to return to Toronto after she moved to New Brunswick in violation of a previous court order, an Ontario court permitted the mother to remain in New Brunswick, based on the best interests of the child in question.

The Parties

The child at issue is the only child of these two parents. The parties were not married, and at the time the baby was conceived, they had only known one another for approximately one week. The pregnancy was unplanned. After the mother learned she was pregnant she moved in with the father in Ontario. Their cohabitation was short-lived and ended with an argument that became physical. Following the argument, the mother and child moved to a local women’s shelter.

Within days of the mother leaving the home, the father requested a court order preventing the mother from removing the child from the province, on the basis that the mother had previously indicated her desire to return to her family in New Brunswick.

In 2007, the mother was granted custody, with the father given specific access (including overnight access and special holiday access). He was ordered to pay child support. Neither party was permitted to remove the child from the jurisdiction except for vacation purposes (and, then, only with reasonable notice).

For the most part, both parties were quite involved in the child’s life, as were the father’s parents; however, that changed in 2009, when the mother brought a motion seeking an order to change the father’s access as he claimed he had been using cocaine while in the care of the child. A drug test revealed the father used cocaine at a fairly high level, and further tests revealed the child had been exposed to cocaine for the preceding nine months. The father agreed to attend drug treatment, regular drug tests, and to have his access visits supervised until he could establish that he was no longer using drugs.

The mother also sought the court’s permission to relocate back to New Brunswick with the child. She stated that it was challenging to be a single parent, without supports, in Toronto. She felt depressed, isolated and frustrated, and was unemployed but wanting to re-enter the workforce. She had tried to return to school to get retraining on at least two different occasions but had to drop out for various reasons including access problems. She was the child’s custodial parent, but also his primary caregiver: she interacted with his teachers at parent- teacher interviews, doctors and specialists at his frequent medical appointments, and also providing day to day care for him. The mother stated that she found it “difficult to deal with” the father as he often yelled and swore at her, and would threaten her when he did not get what he wanted. She undertook, however, to encourage frequent access to the father should she and the child move.

The father resisted the mother’s request. He claimed that the mother had been struggling with parenting and that he was providing necessary assistance in meeting the child’s needs. He feared that the strong father-son bond that he shared with the child would be destroyed if the child moved. He denied threatening the mother and believed she had “psychological” problems.

The mother visited New Brunswick on vacation in 2012. While there, she decided to stay permanently and pursue her request to change custody from there. The father filed a contempt motion, claiming the mother was in violation of the original court order which prohibited her from taking the child out of the jurisdiction and sought an order compelling her to return to Ontario with police assistance.

Change in Custody or Access Order to Permit Taking a Child Our of Province

The leading decision on child relocation is the Supreme Court’s decision in Gordon v. Goetz where the Court stated:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and ability of the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
5. Each case turns on its own unique circumstances.  The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia:

• The existing custody arrangement and relationship between the child and the custodial parent;
• The existing access arrangement and the relationship between the child and the access parent;
• The desirability of maximizing contact between the child and both parents;
• The views of the child;
• The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
• Disruption to the child of a change in custody;
• Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

The Court undertook this analysis, taking into consideration the above factors, and came to a number of conclusions:

• The mother was both the custodial parent and the primary caregiver of the child at the time of the trial;
• The child had not been in contact with his father since 2012 before he and the mother left for New Brunswick;
• The only way to “maximize contact” between the child and the father would be to order the child to return to Ontario;
• The mother’s move had been relevant to her ability to meet the needs of the child;
• She had been unhappy in Toronto, on welfare, and unable to retrain or obtain a job. Her main parenting support came from the father, a man whom she deeply distrusted and with whom she had a toxic relationship.
• The mother questioned whether the father was still using drugs, and the father had failed to heed the court order that obligated him to submit to drug testing every six months.
• The mother had always been the child’s custodian and primary caregiver- to move the child to Toronto and out of his mother’s care would be very disruptive. The child was settled and thriving in New Brunswick.

Best Interests of the Child

Fundamentally, the ultimate question in every family law case is what is in the best interests of the child in the circumstances?

With respect to child’s best interests in this case, the court noted that here, though the father was seeking custody, it was clear that he simply wanted the situation to return to the way it was before the mother moved to New Brunswick. He wanted to continue to be the access parent and be able to visit with the child anytime he wished. In the court’s view, the father’s “…custodial plan was very poorly thought out and had no air of reality”.

The mother, on the other hand, had demonstrated her ability to care for the child and provide for his needs. Her care plan was well executed. Removing the child from the mother would be very upsetting for him. Requiring the mother to return to Toronto would be very upsetting to both the mother and the child.

While the father sought an order returning the child to Toronto because the mother had left there “illegally”, the court stated:

…I am not prepared to grant custody to his father as a means of punishing the mother for disobeying a court order because to do so in this case would be to ignore the child’s best interests.

Further, while the principle of maximum contact is mandatory in family law cases, it is not decisive, and must be respected only to the extent that it would be in the child’s best interests to maximize contact with both parents. Here, the court found that:

…the principle of “maximum contact” cannot be reconciled with best interests of the child. It is not in Jesse’s interests to be returned to the dysfunctional, often toxic parenting arrangement that existed prior to his move to New Brunswick.

Since the child was settled well in New Brunswick, the mother wished to remain there, and there had been no improper motive behind her move, her wishes as custodial parent were to be given “great respect and the most serious consideration”.

In weighing the value of maintaining full contact with the father and other family remaining in Toronto, against the value of allowing the child to remain in New Brunswick, “there [could] be only one decision”- the child’s best interests were with his mother in New Brunswick.

The court permitted the mother to remain in New Brunswick.

Lessons Learned

Custodial rights do not include an inherent right to change a child’s residence. If relocating a child by one parent will affect the child’s access to the other parent, that other parent can apply to the court to prevent the child from being moved.

Courts have immense discretion when determining whether relocation of a child should be permitted. A parent’s ability to move with their child will depend on whether the move constitutes a material change in circumstances that is likely to affect the child. Any move will always be looked at through the lens of a child’s best interests, and in order to be successful, the parent wanting to move the child will have to demonstrate that the relocation will be best for the child.

If you have questions about the child custody and access, the logistics of potentially moving your child away from the other parent, or any other family law issue, please contact the experienced Toronto family lawyers at Gelman & Associates online or at (416) 736-0200 or 1-844-742-0200 for a confidential initial consultation.

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