In an interesting recent case called White v. Noel, the court was asked to balance two competing rights: the rights of one parent to have legal and geographical access to his child, and the rights of the other parent to move the child away in order to seek a better life.
The background facts were a little unusual: The man and woman had known each other for only about a week when the woman unexpectedly became pregnant. The woman moved in with the man, but the relationship ended about three months after their son was born, after a physical altercation where police were called. By way of a court order in 2007, the woman was given custody of the boy, and the father was granted access every other weekend. That same order stipulated that the woman was not to remove child from Ontario, except for holiday purposes.
Since that time, both of them stayed in Ontario, with the 39-year-old man continuing to work as a roofer in the summer and doing snow removal in the winter. Meanwhile the 47-year-old woman was for the most part unemployed, and despite numerous efforts to train and obtain work, had to support herself and the boy through public assistance programs.
Furthermore, her unavoidable interactions with the man over access and scheduling frequently ended in dispute, and the police had to be called on occasion. She often suspected that he was impaired by cocaine or alcohol while in a care-giving role to the child.
Perhaps not surprisingly, the woman was very unhappy in Ontario, and wanted to return to her native New Brunswick. She went back there on vacation in 2012, and decided to stay permanently. The man did not make any effort to see the child after that, and told the woman that he wanted nothing further to do with the boy unless he was returned to Ontario.
Before the court, the woman brought a motion to vary the earlier custody/access order, based on a “material change in circumstances” – being her own unilateral decision to move to New Brunswick. The man responded with his own motion for an order citing the woman in contempt of court for moving away with the child in breach of that earlier order.
In balancing the competing rights and interests of these parents, the court looked at the man’s position: at the time of the motion, he had not seen his child since 2012, and it was clear that their relationship had diminished as a result. The law did require the court to strive for maximum contact between the child and his father (among other things); in light of the man’s threat that he wanted nothing to do with the boy if he stayed in New Brunswick, the only way for the court to do that was to order for the woman to return the child to Ontario.
However, the question of what was in the child’s best interests was still the overall governing factor.
Turning to the woman’s position: The court noted that she had primary custody and was the primary caregiver for the boy since his birth. She had moved to New Brunswick in order to make a better life for the two of them.
To that end, she had found a job in New Brunswick and had secured an apartment that was close to her family. And while living in Ontario her interactions with the man while living in Ontario had been toxic, and she had genuine concerns about his ongoing cocaine use (and, the court noted, he had failed to submit to drug testing as he had been previously ordered).
In short: Moving the child out of the woman’s primary care would be disastrous, since the child was currently thriving and the woman had shown through her well thought-out plans that she was able to care for his needs. In contrast, the father’s plan was more aimed at punishing the mother for the disobeying the court order not to move. Even in purporting to seek custody he likely had an ulterior motive, as the court explained:
In this case, although the father seeks custody, it is clear to me what he really wants is the situation to return to the way it was before the mother moved.
He would like to continue to be the access parent and be able to visit with [the boy] whenever he wants. His custodial plan was very poorly thought out and had no air of reality.
Overall – and especially in light of the fact that the mother’s motive for the unilateral move was not improper – the court found that it was in the child’s best interests to continue to live with the woman in New Brunswick, even if it meant that practically speaking the man’s access would be curtailed.
For the full text of the decision, see:
White v. Noel (2014), 2014 CarswellOnt 14923, 2014 ONCJ 555, P.J. Jones J. (Ont. C.J.)
