It may be natural to assume that once a separation or divorce is final, that a relationship between a couple will finally conclude. However, even when court orders are in place, material changes in circumstances might have an impact on the obligations of each of the parties down the road. This can apply to spousal or child support, as well as with custody and access, which can be a tough situation for parents to deal with on an emotional level. A recent decision from the Ontario Superior Court of Justice looks at the requirements needed to relocate children.
The family situation
The mother and father were married in September 2000, and they separated on April 1, 2018. They had three children while married. They were born in 2002, 2005, and 2009. The home they lived in at the time of the separation is in Barrhaven, Ontario. They moved there in 2005. Upon separation, the father moved into his parents’ home, which is a nine-minute drive from the matrimonial home.
A March 3, 2020 order stated that the parents shall maintain joint custody of the three children and that the parents would share in decision-making authority. The two older children did not have set schedules for access, but a parenting schedule was put in place for the youngest.
The father raises concerns
The father told the court that the separation was amicable at the time, but that the mother began to curtail access to the children, including denying him overnight access. The older children were also missing more school, and the father said he was not apprised of this. The March 3 2020 order was supposed to address these issues. However the mother later decided she wanted to move to Orleans along with the children (about 40km away). He said this decision occurred as he was beginning to heal his relationship with one of the older children.
The father claimed the decision to move fits into a pattern of unilateral decision making on the part of the mother. This included medical decisions involving the children.
The mother’s position
The mother said it was the father’s insistence on selling the matrimonial home is responsible for her decision to move. She said she can’t afford to stay, and is moving into the home of her father. She said she is unemployed, and the father has not been paying child support.
The mother said that the children agree with the decision to move and are looking forward to it.
The court’s analysis
The court turned to the leading case on mobility involving children. The 1996 decision from the Supreme Court of Canada states that the best interest of the child (or children) is the ultimate question in every case. The summary of the law is as follows:
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.
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 the ability of the respective parents to satisfy them.
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
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.
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.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) 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;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
The court reached the conclusion that it was within the best interests of the children to move to Orelans with the mother. However, it noted that there should be a modest increase to the father’s parenting time as a result.
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