Court Cases & Orders Parenting Time & Decision Making

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

Written by Russell Alexander / (905) 655-6335

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 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 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

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.