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Posts from the ‘Ontario Divorce’ Category

Ontario Courts Soon to Get Wi-Fi!

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Ontario Courts Soon to Get Wi-Fi!

You read that right.  And – no – you’re not reading an old Blog from 10 years ago.  It may come as surprise, but the Ontario courts’ arguably archaic infrastructure has not had Wi-Fi … until now. (Or soon).

According to a November 2017 announcement from the provincial Attorney General, Ontario’s courthouses will all be newly-equipped with Wi-Fi by 2019.  Additional upgrades will see the current paper-based system for delivering Jury summons will be replaced by one allowing for delivery by e-mail or text, and some divorce-related documents will eligible for on-line filing.

In announcing this long-overdue development, which is being positioned as a measure to improve access-to-justice especially in the Family Law realm, Attorney General Yasir Naqvi said:

“Our system is still very much a bricks and mortar system … The most advancement we’ve seen is we’ve moved from typewriters to desktops or paper filings to faxes. That’s where we’re starting.”

Obviously, these are just baby-steps towards bringing the physical resources into the modern age, it is one of several planned additional steps to modernizing the courts and justice process in the province.

As far as Family Law-related upgrades go specifically:  In April 2018, couples going through a joint divorce will be eligible to file their divorce applications on-line.  This augments a recent improvement to the document filing system, which saw the province set up a service allowing parents to update their child support agreements online.

For more information on this announcement, see:

Ontario’s new attorney general wants to modernize justice system

http://www.cbc.ca/news/canada/toronto/wifi-ontario-courts-electronic-1.4425300

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

New Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

New Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

The Law Society of Ontario has just announced its approval-in-principle of a joint action plan that is the culmination of a Family Legal Services Review commissioned last year in conjunction with the Ministry of the Attorney General.  The resulting Report makes 21 recommendations that are aimed at improving access to Family Law legal services, most notably by expanding the role of paralegals. Under the joint action plan being considered, the Law Society commits to the following:

  • To develop a license for licensed paralegals and others with appropriate training, to allow them to offer some Family Law legal services. The licence will support training on the topics of: legal process; completing Family Law forms, investigating certain financial information, Motions to Change, and uncontested divorces.  The Law Society indicates that training will be an intensive and rigorous process, of up to 14 months’ duration, along with testing.
  • To “engage in a robust evaluation of the success of the Family Law legal services license for service providers other than lawyers, and to make any adjustments that are in the public interest.”
  • To consider allowing lawyer candidates (e. articling students) to be given “experiential training” in the licensing process, including how they may support the delivery of Family Law legal services under appropriate supervision.
  • To review the Rules of Professional Conduct governing lawyers and paralegals, to see whether the current rules on the unauthorized practice of law are as clear as possible on the difference between legal information that is legal advice, versus legal information that might be provided by Court staff to unrepresented litigants. The intent is to effect a common-sense change to give Court staff more latitude to help self-represented litigants navigate the Family Law process.
  • To continue to support the expanded use of unbundled services and legal coaching, including offering Continuing Legal Education opportunities, as well as tools that address concerns over legal liability.

The Law Society indicates that it will also continue to assess what additional Family Law legal services (including advocacy in and out of the courtroom) should be made available by providers other than lawyers.   This again requires consideration of the public interest.

It should be noted as background to this newly-announced initiative, that the Law Society has also ramped up its lobbying efforts, in cooperation with the Bar, to encourage the Federal and Provincial governments to accelerate the implementation of Unified Family Courts to all jurisdiction in Ontario.  (Currently, there are only 17 Unified Family Courts are only available to litigants in the province, mostly in the greater Toronto region).

What are your thoughts on this new action plan?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

In Custody/Access Matters, Should the “Voice of the Child” Be in Brief, and in Writing?

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In Custody/Access Matters, Should the “Voice of the Child” Be in Brief, and in Writing?

In even the most routine child custody, access and child protection determinations, courts are obliged to consider a vast array of factors that explore what arrangement will be in the best interests of the child.   Among the key considerations – particularly for an older child – are the child’s express wishes. For example, in the child custody context, the child’s own views will be explored on topics such as which of two separated or divorced parents he or she wishes to live with.

How Courts Currently Hear the “Voice of the Child”

In Ontario, and for all child-related proceedings and for any decision-maker under legislation impacting children, this purposive inquiry is legally-mandated under several statues, including the Katelynn’s Principle Act (Decisions Affecting Children). The fundamental principle is that “a child must always be seen, the child’s voice must be heard, and the child must be listened to and respected.”  This concept is also confirmed and echoed in Article 12 of the United Nations Convention on the Rights of the Child.

As a sort of shorthand in family law matters, this is commonly referred to as the “Voice of the Child”.

Presently, the formal method for identifying the Voice of the Child in child-related matters is through a detailed, labour-intensive, and legislatively-mandated report prepared by the Office of the Children’s Lawyer (OCL) in each case.  The report can be prepared only after the child, and everyone involved in his or her life, is exhaustively interviewed by qualified experts.  The report must also include recommendations on “all matters concerning custody of or access to the child and the child’s support and education” as a means of assisting judges to make a decision as to the child’s best interests.

What’s New?

While still relatively innovative, there is a more efficient option on the family law horizon in Canada.  Called the “Voice of the Child Report” (VCR), it is a briefer, non-OCL-evaluated report written by a social worker, lawyer, or mental health professional.  The VCR simply outlines the child’s wishes in a neutral way, with the sole focus being on the child’s views.

Using a VCR results in a more streamlined, efficient, and cost-effective way to keep the child involved, while still providing the court with a sufficiently fulsome, but non-binding, glimpse into the child’s wishes.  The weight and impact given to the VCR will depend on numerous factors, including the age and maturity of the child, the clarity of his or her wishes, and how long the particular preferences have been held.  Both parents must consent to using a VCR, and they are responsible for paying the cost of its preparation.

Why are VCR’s a Good Option?

A study by two Canadian professors of Law and Social Work, respectively, suggests that the use of VCRs should be widely endorsed by stakeholders in the family law system.   After a pilot project to use VCRs in a handful of Ontario court regions, their study involved interviewing parents, children, judges and lawyers on their experience with using VCRs.  Most parents and professionals found the shorter reports helpful in resolving disputes.  The children also reported that they enjoyed the opportunity to be heard on their custody and access-related wants and preferences.

The authors’ resulting report, titled the Views of the Child Report: The Ontario Pilot Project – Research Findings and Recommendations, suggests that the use of streamlined VCRs has many benefits:  It can avoid the intensive interview and recommendation process, keep costs and delay at a minimum, yet still uncover a child’s true wishes around custody and access.  Plus, separated parents who opt to use VCRs often find themselves encouraged to settle; the VCR’s straightforward statement of the child’s own, unfiltered sentiments can help parents re-focus on the true objectives behind the litigation in which they are often embroiled.

VCRs have not been formally adopted or mandated for use in Ontario family law matters. However, in conjunction with the provincial Attorney General’s office, there are plans afoot to explore whether they should be introduced into the court system, through an amendment to the current legislation.

What are your thoughts?  Are VCRs a good idea for child custody and access matters?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

 

Is Husband’s Payment of 230 Gold Coins Under Islamic Marriage Contract Excluded from Wife’s Property?

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Is Husband’s Payment of 230 Gold Coins Under Islamic Marriage Contract Excluded from Wife’s Property?

Under the law governing Islamic marriage, a “Maher” (sometimes written as “Mahr”) is a written marriage contract.  In the recent Ontario Court of Appeal decision in Bakhshi v. Hosseinzadeh, the narrow legal question was whether, under the Ontario Family Law regime, the property transferred under a Maher is excluded from the definition of Net Family Property (NFP), and by extension excluded from the equalization calculation of the parties’ respective NFPs upon divorce.

When they married in Iran in 1995, the couple had entered into the Maher in keeping with their religious and cultural beliefs.  The Maher contained a clause that required the husband to pay the wife 230 gold coins promptly upon her request.  The spouses later immigrated to Canada.

When in 2013 the wife began divorce proceedings and various related court applications, the issue arose as to how the notional transfer from the husband of those 230 gold coins under the Maher was to be treated in law.  At the initial trial, the judge concluded that the Maher obligation was valid and that the value of the gold coins – about $80,000 – was to be excluded from the wife’s NFP total.

The Court of Appeal was asked to entertain the husband’s appeal.  It began by confirming the ruling of prior courts to the effect that despite being religion-based, marriage contracts such as a Maher can be enforceable, provided they satisfy the elements of a valid domestic contract under Canadian law.  Once deemed valid, they are interpreted like any other civil contract, by looking at their wording and the objective intentions of the parties at the time the agreement is made.

Next, the Court observed that definition of NFP found in the provincial Family Law Act includes all property owned by a spouse on the valuation date.   The Maher in this case contained no express agreement that the payment of 230 gold coins was to be excluded from the wife’s NFP, nor was there any basis to infer that the spouses intended at the time to exclude it.  To the contrary, it was executed in Iran and contained other terms that suggested the couple envisioned continued life in that country, and were not contemplating their potential mutual obligations under the Ontario legislation.

The Appeal Court concluded that the Maher payment was to be treated under the Family Law Act like any other payment obligation between the spouses, meaning that it was to be included in the overall calculations.  That outcome was in keeping with the rest of the legislative regime, which envisions that spouses own property separately during marriage, and does not allow for transactions between spouses to be excluded from NFP calculations.

The Court re-calculated the NFP by including the value of the Maher payment, while clarifying that the husband still needed to actually (i.e. physically) transfer the 230 gold coins to the wife’s possession.  Even though its value was to be included in the overall equalization calculation, the Maher payment itself was considered a demand obligation with a paper value, which meant the wife was entitled to pursue debt collection remedies if the husband refused to pay.

For the full text of the decision, see:

Bakhshi v. Hosseinzadeh

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Long-Awaited Update to Federal Child Support Guidelines

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Long-Awaited Update to Federal Child Support Guidelines

Important news for those who pay – or are eligible to receive – child support anywhere in Canada.

What are the “Guidelines”?

As most of my readers will know, the Federal Child Support Guidelines (the “Guidelines”) are the government-sponsored tool that help separated and divorcing parents set the appropriate amounts of child support that must be paid in respect of the children they have together.

The Federal Child Support Tables, which reflect the principles and calculations mandated by the Guidelines, set out the basic monthly amounts of child support that are result from various permutations.

The Guidelines and the corresponding Tables have been in force since late 2011, and until recently have reflected the calculations that accord with 2011 tax rules.

What’s New?

The Guidelines and corresponding Tables have been amended to reflect more recent tax rules, and have been incorporated into an updated version that takes effect on November 22, 2017. The official (and updated) Federal Child Support Tables, plus additional information and some “legalese” about these new amendments, are located here.

Where, and When?

As with the last version of the simplified Tables in PDF, there is a streamlined, simplified version of the 2017 Tables (also in PDF).  There is also a Child Support Table Look-up for both the 2011 and 2017 versions.  There is also an updated, Step-by-Step Guide.   (Note however that these streamlined and simplified versions are not “official”; only the original Federal Child Support Guidelines and Tables are considered legally-authoritative as to child support amounts.  This also means that the amounts of calculated support may be different when using the official Guildelines or Tables versus the more simplified tools).

One final point:  the new 2017 Guidelines and Tables come into force on November 21, 2017.   For people who need to determine how much child support is owed for a period before that date, the prior version of the Guidelines should still be used.  (And for those who need to calculate child support for a period earlier than December 31, 2011, an even earlier version of the Tables should be consulted.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Should (Another) 20-Year-Old Cohabitation Agreement Be Upheld?

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Should (Another) 20-Year-Old Cohabitation Agreement Be Upheld?

A few weeks ago, I wrote about a case in which the court was asked whether a separation agreement signed by a couple 20 years earlier should be upheld.

Coincidentally, another recent Ontario Court of Appeal case involved a similar circumstance.

When the couple started living together 20 years ago – and at the husband’s insistence, since he’d had a prior relationship end acrimoniously – they signed a cohabitation agreement.  The husband took care of having it drafted, and he presented it to the wife for her signature.  He wanted the security of having the agreement in place before moving forward in the relationship and buying a home with her.

The wife did not have independent legal advice at the time, although she was given the opportunity to obtain it.  Under the terms of the agreement she signed, the wife agreed to give up all her claims to spousal support.

Still, when they separated 20 years later, she claimed for spousal support nonetheless.  The trial judge upheld the separation agreement, and dismissed her claim for support.  The wife brought an appeal.

In evaluating whether to allow that appeal, the court had to embark on a two-stage analysis, the first stage of which required it to:

1) look at the circumstances surrounding the negotiation and execution of the agreement, to determine whether there was any reason to discount it; and then

2) consider the substance of the agreement, to determine whether it was in substantial compliance with the general objectives of the Divorce Act at the time it was formed.

Then, in the second stage, the court had to consider – now 20 years later – whether the wife had established that the agreement no longer reflects the original intention of the parties, and whether the cohabitation agreement is still in substantial compliance with the legislated objectives of the modern-day Divorce Act.

Applying those standards here, the wife argued that the agreement was invalid, and that the trial judge failed to consider certain important facts when applying this two-stage test, namely:

  • That there was a power imbalance between her and the husband;
  • That she had not discussed spousal support with the husband;
  • That the husband’s financial disclosure was incomplete; and
  • That she did not have independent legal advice.

While conceding that she was not coerced, the wife argued that the agreement simply did not align with the overall objectives of the Divorce Act, whether now or back when it was signed.  This was particularly true since the couple went on to have an 18-year relationship, they had two children together for whom the wife bore the primary responsibility, and his income exceeded hers.

The Appeal Court considered the wife’s arguments.  After examining the objectives of the legislation, it rejected her spousal support request. There had been no error of law or misapprehension of fact by the trial judge, who carefully reviewed the relevant test and found:

  • The wife was aware of the husband’s desire to have a cohabitation agreement.
  • They had discussed the cohabitation agreement before the wife received it.
  • She was aware of all of the husband’s sources of income and assets, but did not pursue further disclosure.
  • She skimmed over the cohabitation agreement, reading some parts but not others.
  • There was no fraud, coercion, or duress.
  • Although given the opportunity, the wife did not seek independent legal advice even though – on her evidence – she had six weeks to do so.
  • At the time of signing the agreement, the wife thought it was fair and that it fairly outlined the parties’ discussions regarding the purchase of a house.
  • The agreement is in substantial compliance with the Divorce Act.

The court noted that the trial judge was entitled to make the findings that he did on the evidence, and are entitled to deference from appeal court.  It added that even if the cohabitation agreement did not exist, on all the facts the wife would not be entitled to spousal support anyway.  The court dismissed her appeal.

For the full text of the decision, see:

Smith v. Smith

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

 

Could Long-Haul Trucker Dad Quit His Job (and Avoid Child Support) Due to Dizziness?

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Could Long-Haul Trucker Dad Quit His Job (and Avoid Child Support) Due to Dizziness?

After separating from the father, the mother had full-time custody of their two 17-year-old children.  The father agreed to pay a set amount of child support, based on his long-distance trucker’s income of $66,000.   However, he was prohibited from communicating with any of them, under the terms of his bail following a guilty plea for assaulting the mother.

About a month after the consent order for child support was made, he claimed that he had experienced a bout of encephalitis, which afflicted him with facial paralysis, dizziness, vertigo, and some mental impairment.   He claimed he was no longer able to work at his job from that day forward; thus with no income, he claimed he was unable to pay child support.

However, he filed no current medical reports with the court to support that contention, other than certain 2-year-old notes and reports that the court found unhelpful.  While it was true that he was on short-term disability right after he quit, he did not provide any evidence as to whether he even applied for long-term disability at all.

The court didn’t buy it.

The father had quit his job for no reason.  His purported illness – which was medically confirmed not to have been a stroke – lasted only a short period of time.  He did not lose his truck driver’s license because of it.

In short:  the father had no valid excuse for not continuing to work and continuing to live up to his financial responsibilities to the children, as he had done before.  He had essentially chosen not to continue working, likely as a bid to avoid his child support obligations entirely.

In light of the fact that he was capable of earning more, the court relied on one of the provisions of the Child Support Guidelines that allowed it to impute income.  As the court explained:

Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed.

Notwithstanding the father’s current state of self-imposed unemployment, the court set the father’s income back at the $66,000 level.  It ordered him to continue paying support at the same level as he had done before he quit, and sorted out the amount of the unpaid arrears as well.

For the full-text of the decision, see:

Armstrong v. Wallace

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

 

In Custody Case, Court Avoid Declaring Either Warring Parent the “Winner”

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In Custody Case, Court Avoid Declaring Either Warring Parent the “Winner”

The parents of a now 13-year-old boy and of three other now-adult children had separated very acrimoniously in 2012.  The court describes the end of the relationship this way:

The parties separated at the end of December, 2012. There was a meeting of the family, not including [the 13-year old son], in early January, 2013. It was hoped that that meeting would be civil, and would set the stage for an orderly transition to the parties living separately. Instead, matters went rapidly downhill thereafter. There were allegations of abuse, violence, theft, destruction of property, assaults, and other allegations of a similar nature. The [father] began videotaping interactions between the parties and their children. The police were called on many occasions. The Children’s Aid Society was involved.

After the ill-fated family meeting, the mother had primary care of the boy, while the father had access only on alternating weekends.  The court heard that under this arrangement, the boy was by all accounts thriving in his school and social environments.  He had a strong attachment to both parents, and was equally happy spending time with either of them.  His stated preference was to spend equal time with them both.

Nonetheless, the father applied for sole custody of the boy.  He claimed that the mother had abused all children for years, and indeed two of them and their paternal grandmother gave testimony to confirm that opinion. (And the court noted that two of those three adult children no longer wanted anything to do with their mother.)   Two of the boy’s siblings gave evidence that the boy would be much better off living with his father, and one of them felt that he would be better off not seeing the mother at all.  One sibling was more conciliatory, but also believed that the boy would do better living with the father.

The father’s opinion of the mother was unequivocal:  He claimed she was a “vindictive, destructive, and evil” person.

The court was left to resolve all this competing evidence in a high-conflict situation, to arrive at a workable resolution.  In doing so, it reiterated the guiding principle in such matters:

It is trite that decisions respecting the custody of or access to a child must be made in accordance with the best interests of the child. The interests of the parents are entirely secondary.

The court then added:

Having heard 16 days of evidence, it is quite clear that each party is, for the most part, concerned with his or her interests first and foremost. The hatred of these parties for each other is palpable. Control is of paramount importance.

Both parties have behaved unreasonably.

Against this background, the court concluded there had been no abuse of the boy, and that – when not embroiled in litigation – were good parents and have the boy’s best interests in mind.  Even though the parents lived quite some distance away, and assuming that the father could commit to getting the boy to school, there would be an order for joint custody, with an equal shared / parallel parenting regime involving at least 40 per cent of the boy’s time being spent with each parent.  (And if the father could not commit to the school-day driving then the current arrangement would remain, but with increased access to him).

The court added that it also wanted to avoid making an order for sole custody to one parent or the other, for fear that the chosen parent would consider themselves the “winner” and use such a determination as an “instrument of oppression.”

For the full text of the decision, see:

Hart v. Krayem

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Dad Loses Joint Custody, But Gets Access to Give Son Needed “Down-time”

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Dad Loses Joint Custody, But Gets Access to Give Son Needed “Down-time”

In a case called Newman v. Nicholson, the parents of a 14-year old boy had been subject to a court order, granting them each joint custody.  The boy lived in the primary care of his mother since he was 2 years old.

Over that period, the mother had done most of the work around attending to the boy’s needs:  For example, she facilitated his involvement in highly-competitive Triple-A level hockey, as well as high performance athletic programs, hockey camps and high school sports.

In contrast, the father had been comparatively unreliable in meeting the boy’s needs, and sometimes had trouble getting him to school or sports functions on time.  This was compounded by the fact that his driver’s license had been suspended by the Family Responsibility Office for non-payment of child support.   His income had also dropped for unrelated reasons, and the mother claimed he had increased his consumption of alcohol.  She also had concerns that the boy spent too much time playing video games while in the father’s care.

The mother applied for sole custody (but with generous access to the father), on the basis that there had been a significant change since the order had been made.  She pointed out that while she had taken charge of attending to all the boy’s needs, the father had not even honoured his financial obligations as a parent.  More troubling was the fact that the father deliberately ignored her emails and was unresponsive in his communication with her about the boy’s various existing health issues, some of which required monitoring.

The father wanted the joint custody to remain as-is.

After considering the boy’s best interests, the court concluded that the existing situation was indeed ripe for change, primarily due to the nature of communication between the parents, which the court called “abrasive and contemptuous.”  That, coupled with the father’s historic inability to get the boy school and sports on-time, was justification for removing the father’s entitlement to joint custody and reducing his access time.  Although both parents had a strong bond with the boy, and both wanted a role in parenting him, the mother had played the lead role with respect to his schooling, medical needs, activities registration and scheduling.  The court added that at this point in his life, the boy needed consistency and routine.

However, the father was to continue to play a meaningful role in the boy’s life.  In particular, the court found that the boy’s time with his father was “an opportunity for [him] to play video games and allow him some ‘down time’”.

The court accordingly imposed a schedule for reduced access, which would be increased once the father got his license back.

For the full text of the decision, see:

Newman v. Nicholson

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Moving with a Child: Mother’s Views Take a Back Seat to “Super ordinate Considerations” Affecting Child

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Moving with a Child: Mother’s Views Take a Back Seat to “Super ordinate Considerations” Affecting Child

In cases where spouses are separated or divorced, the decision of where a parent can live and work is no longer his or her alone.   Rather, the Family Court may become involved, and may be asked to give the parent permission to relocate, particularly if that involves moving with the child to a faraway community or jurisdiction, such that convenient access by the other parent is foreclosed.

Recently I talked about a noteworthy decision in a case called Porter v. Bryan where the Ontario Court of Appeal considered the various interests that must be considered when granting (or denying) permission in such cases.

In identifying those factors, the Court drew from a decision by the Supreme Court of Canada in a landmark case called Gordon v. Goertz, where the country’s top Court said:

…the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.

However, while the custodial parent’s views are entitled to “serious consideration,” and were part of a balancing of the two parents’ competing interests as well, it was actually the child’s best interests that were to be given what the court called “superordinate consideration”, with the entire analysis to be determined using a child-centred perspective.   This was in line with the Court’s own prior ruling in a case called Berry v. Berry as well.

Applying these principles to the fact situation in Porter v. Bryan:   While the mother’s reasons for moving – while entitled to “great respect” – were relevant only to the extent that they related to her ability to meet the needs of her son.   The overall focus was to remain – at all times – on what was in the best interests of the child.

For the full text of the decisions, see:

Berry v. Berry

Porter v. Bryan

Gordon v. Goertz

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com