CHILD MOBILITY AND THE CHILD’S WISHES – A. (G.) v. B. (K.) 2014
November 7 2014
A. (G.) v B. (K.), 2014 ONSC 3913, 46 RFL (7th) 351
This case addresses the issue of mobility and the weight given to a child’s wishes.
The parties were married in 1994, separated in 2002, and divorced in 2005. There were two children of the marriage, ages 13 and 15. On March 5, 2010, a final consent order was made and the Mother was awarded sole custody and primary residence of the children. The Mother then brought a motion to change the final order permitting her to move with the children from Toronto, Ontario to Washington DC. The Father opposes the move as he says that the move may be in the mother’s best interests or those of her new partner, but not the children’s (paragraph 1).
Justice Perkins begins his analysis of the issue of mobility by summarizing the legal principles laid out in Gordon v Goertz,  2 SCR 27 (SCC). Paragraphs 49 and 50 of Gordon, supra, provides as follows:
49. The law can be summarized 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 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:
•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.
50. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
Justice Perkins then considered the evidence before the Court including the witnesses called by either party. The Court found, based on the testimony of the witnesses, that the children were “highly sociable and adaptable” (paragraph 37). Further, the children “were consistent in their desire to live with the mother, wherever that might be” (paragraph 38). The Court found that “Both children were very clear that they loved both parents, enjoyed their time with the father, but could not under any circumstances see themselves living with the father….They were willing to leave their past associations behind, knowing they would form new ones and confident they would be able to keep in touch with close friends” (paragraph 38).
Justice Perkins, after obtaining consent from the parties, the Children’s Lawyer, and the children, met with the children to discuss their wishes and preferences. From this meeting with the children, Justice Perkins concluded that the “Both children were very clear that they wanted to live with their mother” (paragraph 42).
The Father submitted that, since separation, the mother had tried to “marginalize him in his role as a parent” (paragraph 43). The Court, however, found that this “was not a campaign by the mother” (paragraph 46).
The court then found that the circumstances surround the Mother’s relationship with her fiancé, among another factors, amounted to a material change affecting the children’s best interests (paragraph 54). Further, the Court provided, “There is no question that the mother has always been and still is the primary parent for the children in dealing with their physical care, their medical and educational needs, and their social and recreational pursuits” (paragraph 56). In addition, the Court found that relocation would not cause instability in the children’s lives and the issue of maximum contact with the father “is not so difficult in this case as it often is” (paragraph 58). Lastly, the children’s views regarding relocation is very clear given the evidence before the Court.
Justice Perkins concluded that from his evaluation of the evidence and his consideration of the best interests factors, “including the maximum contact principle, results in a finding that the mother’s plan is in the children’s best interests. She will accordingly retain sole custody of the children and be permitted to move to live within 50 km of the boundary of the District of Columbia” (paragraph 64-65).
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