In an interesting recent Court of Appeal decision, the court demonstrated the sensitivity with which custody applications must be assessed, particularly where one parent wants to move away with the child to a different province entirely.
The same-sex parents, Ms. B and Ms. R, separated after nine years of marriage. Together they had a son who was currently 6 years old. They went to court because they were in dispute over the boy’s custody: Ms. B wanted joint custody, and asked that the boy remain in Toronto where they had lived while they were a couple. Ms. R wanted sole custody, together with the court’s permission to move with the boy to Nova Scotia, where her parents live and where the son had spent considerable time.
After a 7-day trial with 17 witnesses the trial judge granted Ms. R’s sole custody request, and allowed her to move to Nova Scotia with the boy. (The court did allow Ms. B reasonable access, but this was naturally constrained by the distance). Ms. B appealed.
The Court of Appeal started by noting that traditionally the decision of a trial judge as to custody and relocation were given significant deference on appeal. Still, the court reviewed carefully the trial judge’s ruling on the custody issue, and began its appeal decision with these comments:
Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.
In reviewing the various facts, the Appeal Court noted that this was not a typical scenario; it was not a situation where allowing relocation will sever a longstanding bond between the son, Ms. B and her family. For most of the boy’s life, he had no relationship at all with Ms. B’s family at all. Moreover, the boy was familiar with Nova Scotia because he had spent a great deal of time there, and also enjoyed the support of his extended family and the community there. Indeed – as the trial judge had concluded – from the boy’s perspective Nova Scotia was what is “known” to him. The court added that since he was only 6 years old, the boy was at an age where adaptability to change was not as big a factor, and there would be less disruption now than when he is older.
The Court of Appeal also added that this was one of those exceptional cases where Ms. R’s reasons for relocating were to be considered. These included surrounding herself with the support of her family in friends in the East Coast, and making a physical move in the boy’s best interests to somewhere that he was familiar and had established connections.
Finally, the court observed that Ms. B would still be entitled to access to her son, even though it would require some effort and planning to see him. The “maximum contact” principle, through which courts were encouraged to make custody/access rulings that fostered the access rights of the non-custodial parent in the most optimal manner, had not been overlooked by the trial judge here. Importantly, both lower and Appeal Courts noted that there was no evidence that Ms. R’s proposal to move was motivated by a desire to shut Ms. B out of the boy’s life.
In the end, and having found that the trial judge sensitively balanced the two parent’s competing rights, the Court dismissed Ms. B’s appeal and confirmed the order allowing relocation, since it was in the boy’s best interests.
What are your thoughts? Did both courts decide this correctly?
For the full text of the decision:
Lower court decision: