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Wednesday’s Video Clip: Whether a parent has a right to move with a child – the concept of “mobility” in family law

 

 

Whether a parent has a right to move with a child – the concept of “mobility” in family law

The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a custody and access schedule put in place.

But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs.

The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.

In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater. This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and – if so – what happens to the custody and access arrangements that are in place.

In family law, this is known as a “mobility” issue.

In Canada, courts generally recognize that the well-being of a child is fundamentally interrelated with the well-being of the custodial parent; indeed, a 1996 Supreme Court of Canada ruling in a case called Gordon v. Goertz established conclusively that judges must apply the “best interests of the child” test in making decisions about whether a parent should be allowed to relocate with a child, which in turn requires an individual, fact-specific assessment. As the court put it:
“The focus is on the best interests of the child, not the interests and rights of the parents.”

Courts are required to make a “full and sensitive” inquiry. This means that they are obliged to take into consideration a vast array of factors, including:

• 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;

• the disruption to the child of a change in custody; and

• the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

It is worth pointing out that in making this assessment, there is no presumption in favour of either parent (whether the custodial parent or otherwise).

The authority for a court to make such a determination on behalf of parents and children is set out in various provincial and federal family-legislation.

The federal Divorce Act, for example, provides that if a court gives one parent custody of a child, the court may also require that parent to give at least 30 days’ notice to the other parent of any planned change of residence of the child (although practically speaking, most orders specify a 60-day period).

The access parent, upon receiving such notice, can apply to the court to challenge the proposed change of residence, or seek a variation of the custody or access arrangements; this notice period also afford the parents the chance to negotiate acceptable relocation terms, before it happens.

When mobility issues arise, it is important to get experienced and competent legal advice, to ensure that the best interests of all parties – particularly the children of the relationship – are safeguarded.

We hope you have found this video helpful.  If you require further information about mobility issues and family law please give us a call or visit our website at www.russellalexander.com

Should an unhappy mother be allowed to move from Canada back to Italy with her children?

Should an unhappy mother be allowed to move from Canada back to Italy with her children?

This was the issue a Court recently decided in a case we examine in our blog Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

What do you think?

Please read our responses or submit your own comments.

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Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

In this unusual Ontario case, the court allowed the mother to move back to Italy with the children of the marriage, even though she and the father had not filed for divorce and were not even formally separated.

The couple married in 2002 and initially lived in Rome, where their two children (now aged 6 and 9) were born. They moved to Toronto in 2007. The mother, who was 41 and had limited understanding in English, had worked as a lawyer in Italy but was unemployed while living in Canada. She had taken English classes and was trying to re-qualify as a Canadian lawyer, but this essentially required her to start law school all over again, which the couple did not have the money to do. She had therefore spent her entire time in Canada acting as the children’s primary caregiver. Meanwhile, the father worked at his cousin’s downtown restaurant earning $32,000 per year.

Unfortunately, the couple argued frequently and were in marriage counselling. The mother was miserable in Canada, had serious health problems, and did not get along with the father’s parents. She was frustrated at not being able to pursue her chosen profession, and alleged that she had endured some physical violence at the father’s hands. However, the couple had never formally separated, but rather continued to live together for financial reasons.

Against this background, the mother came to court to have it rule on a single question: whether she should be allowed to move back to Rome and take the children with her. The father wholeheartedly opposed her plan, as he feared he would inevitably lose contact with his children.

In hearing the matter, the court summarized the mother’s position as follows:

In essence, Mother says she is miserable here. Things did not work out as they had hoped. They have no money, she cannot work. She is cooped up in a small apartment, receiving no income and requiring government subsidies for daycare. She is isolated and terribly unhappy. This is why she wants to return to Italy with the children.

Mother’s parents bought her an apartment near to them and to schools in a nice neighborhood of Rome. If she returns to Italy, she can practise her chosen profession and earn a good income. She has two job opportunities available to her already. In Rome, she would enjoy the support of her extended family (which is considerable). Language would no longer be an issue for her.

The court applied the established legal tests to the situation, and considered all the factors including the mother’s historical status as primary caregiver, her reasons for moving, the desire to maximize contact with both parents, and the children’s own views. It also considered the dynamic between the children and various individuals, including their parents, both sets of grandparents, and other extended family.

In this case – and while acknowledging that both parents loved and wanted the best for the children – the court concluded that the mother’s plan to move back to Italy was in their best interests. For one thing, the move would optimize her ability to find remunerative and fulfilling work, which would in turn impact positively on the children’s lifestyle. The mother also had a supportive extended family, which included devoted and wealthy parents (they owned an apartment in Rome, a cottage in northern Italy, a beach house in southern Italy, and a timeshare condominium in Manhattan, all of which were available for the mother to use). The children were both Italian citizens and were fluent in the language; they would have very little difficulty adjusting to the move.
In coming to this conclusion, the court also took into account the impact on the father, primarily that he would no longer have frequent contact with the children. (And noted that the father had not decided on whether he was willing to move to Italy as well). Nonetheless, it was satisfied that the economic prospects of the mother (alone) in Italy would exceed the parent’s combined family’s economic prospects, were they to remain in Canada.

Accordingly, the court granted the mother’s request, and allowed her to move with the children back to Rome.

Trisolino v. De Marzi (2012), 2012 ONSC 3921  http://canlii.ca/t/fs3bs
Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For further information, or to schedule an appointment, call 1.905.655.6335.

 

Mobility Cases – B.C.’s Model for Reform

Mobility Cases – B.C.’s Model for Reform

In my other Blog post this week, I outlined a little primer on “mobility”, which involves consideration of when and whether one separated or divorce parent should be able to move with a child so that the other parent’s custody or access rights are potentially affected – for example a move to take a new job or pursue a new relationship in a different city or province.

In this regard, family law principles across Canada have developed and proceeded along a roughly uniform path.   However, in 2010 British Columbia put forth a comprehensive set of proposals for reform, as part of a White Paper put out by the government.   This in turn resulted in amendments to B.C.’s Family Law Act, which were enacted in late 2011 but which are not yet in force.  (The proposed in-force date is in approximately 12-18 months’ time).    The aim of these reforms is to make the law on relocation more certain, by reducing the unpredictability of outcomes, by encouraging settlement, and by allowing parents to plan their lives better.

For one thing, the B.C. amendments impose some firm rules surrounding the question of which parent bears the burden of establishing that the proposed move does (or does not) serve the child’s best interests.   Specifically, where the day-to-day care of a child is “substantially equal”, the parent who wants to move the child bears the burden of proof to show that the proposed relocation would be done in the child’s best interests, and in good faith.  On other hand, if responsibility for the care of the child is not split in a manner that is “substantially equal”, then the burden falls to the parent opposing the move to show that it would not be in the child’s best interests.  In either case, the parent who seeks to move the child is generally obliged to provide a concrete plan showing that “reasonable efforts” will be made to find ways to preserve the child’s relationship with the other parent.

In addition to these rules and presumption relating to burden of proof, the legislative changes also bring about certain enhancements in connection with mobility, including:

• Implementing mandatory notice of moves.  Generally, there will be a mandated 60-day notice period, by which any parent proposing a move (with or without the child) must give the other parent advanced notice.  (There are exceptions in cases where there is an ongoing risk of violence, or where the child has no relationship with the non-moving parent).

• Defining the concept of “relocation”.   This definition focuses on the impact of the child’s on existing primary relationships, rather than using factors such as distance moved or travel times.

• Providing criteria for the courts’ assessment of “good faith”.  Courts are specifically directed to consider such factors as:  the reasons for the move; the likelihood it would enhance the general quality of life of the child and the guardian proposing the move, including improved financial, emotional or educational opportunities; and any existing restrictions on relocation in an order or agreement.

• Requiring courts to aim to preserve existing parenting arrangements to the greatest extent possible.   This prevents the decision on whether to allow relocation from becoming an indirect re-litigation of the fundamental issues between the parents relating to custody and parenting.

In effecting these changes, British Columbia becomes the first Canadian to jurisdiction to address the legal issues surrounding mobility by way of specific legislation.  It will be interesting to see whether other Canadian jurisdictions follow suit.

Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. We are located in Ontario, and serve the communities of Oshawa, Whitby, Pickering, Ajax, Markham, Brooklin, and City of Kawartha Lakes (Lindsay).  To book an appointment, call:  1.905.655.6335

Wednesday’s Video Clip: Mobility and Who is Entitled to the Child

There is a general misconception that when a couple separates, the children must automatically stay with their mother. But in Ontario, the mother and father are equally entitled to custody of the child. If a parent wants to move a child, this step will require a sole custody order, the consent of the other parent or a court order permitting the move.

In this video discusses who is entitled to custody of the child, defacto custody, and mistake parents, often fathers, make regarding custody and the establishment of a status quo. This video also examines the difference between custody and access.

 

 

 

Whether a Parent Has a Right to Move with a Child – The Concept of “Mobility” in Family Law

Whether a Parent Has a Right to Move with a Child – The Concept of “Mobility” in Family Law

The moment that the parents of a child separate, everyone’s life circumstances change immediately:  there are usually new living arrangements and a custody and access schedule put in place.  But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs.   The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.

In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater.  This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and – if so – what happens to the custody and access arrangements that are in place.

In family law, this is known as a “mobility” issue.

In Canada, courts generally recognize that the well-being of a child is fundamentally interrelated with the well-being of the custodial parent; indeed, a 1996 Supreme Court of Canada ruling in a case called Gordon v. Goertz established conclusively that judges must apply the “best interests of the child” test in making decisions about whether a parent should be allowed to relocate with a child, which in turn requires an individual, fact-specific assessment.   As the court put it:

“The focus is on the best interests of the child, not the interests and rights of the parents.”

Courts are required to make a “full and sensitive” inquiry.  This means that they are obliged to take into consideration a vast array of factors, including:

• 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;

• the disruption to the child of a change in custody; and

• the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

It is worth pointing out that in making this assessment, there is no presumption in favour of either parent (whether the custodial parent or otherwise).

Incidentally, the authority for a court to make such a determination on behalf of parents and children is set out in various provincial and federal family-legislation.  Under the federal Divorce Act, for example, provides that if a court gives one parent custody of a child, the court may also require that parent to give at least 30 days’ notice to the other parent of any planned change of residence of the child (although practically speaking, most orders specify a 60-day period).   The access parent, upon receiving such notice, can apply to the court to challenge the proposed change of residence, or seek a variation of the custody or access arrangements; this notice period also afford the parents the chance to negotiate acceptable relocation terms, before it happens.

When mobility issues arise, it is important to get experienced and competent legal advice, to ensure that the best interests of all parties – particularly the children of the relationship – are safeguarded.  Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation.  For more information or to book an appointment call 1.905.655.6335.

 

 

 

Where in the World is “Home”?  Residency Issues in Family Law

Where in the World is “Home”?  Residency Issues in Family Law

We live in a fast-paced society where new experiences are easily brought to our doorstep via the internet.  And where those who prefer to experience the world first-hand can experience greater opportunities for travel and mobility than ever before.  For this latter group, determining where a person legally “resides” can become complex, as a recent Ontario court decision illustrates.

The spouses were married in California in 1988.   The wife was a citizen of Spain, who held both Canadian and U.S. citizenship as well.  The husband was a sea captain, and apparently moved around a great dea.  After they married, they had four children together, two of whom were born in Spain, with the other two being born in the U.S.

In 2005, the couple bought a condominium in Florida.  The husband lived there in 2008 so that he could accept an on-land teaching position.  The wife and the four children moved there to join him in early 2009.
In the summer of 2009, the husband’s father took ill with a terminal disease, so the husband moved back to Toronto to be near him.  The wife and children followed soon after, and moved into the ailing father’s Toronto condo. Unbeknownst to the wife, however, title to it had been transferred to the husband by this point.

Marital problems between the couple started to brew in late 2009, around the same time the husband’s father passed away.  Eventually, the wife and the children moved into a shelter and stayed there until summer of 2010, when a court order was granted giving the wife permission to move with the children to Florida.  Meanwhile, the husband transferred title to the Toronto condo over to his mother.  

Against this complex background, the wife brought a motion to have the court set aside that transfer, and to declare the Toronto condo a “matrimonial home” for the purposes of the Family Law Act, so that it could be sold and she could obtain about $54,000 in legal costs that was owing to her from the proceeds.

Two geographical questions arose:  

1) whether an Ontario court or a Florida court should hear the issue involving the Toronto condo; and

2) whether the parties’ divorce could be granted in Ontario, given the requirement under the Divorce Act that one of the spouses “has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

By this time, the wife had begun child custody proceedings in Florida.  Eventually, the parties agreed to have all issued litigated in Ontario, but when it came time to serve the husband with the necessary court documents, he showed his address for service being in Florida.

As part of the legal wrangling as to which court (Ontario or Florida) had jurisdiction in connection with the parties’ divorce, the question arose as to whether the husband was “ordinarily resident” in Ontario for at least one year prior to the commencement of the proceeding.   The husband’s affidavit and other evidence on this point was all over the map (pun intended):   he deposed that he had returned to Florida in July and continued to return to Canada to visit his mother periodically.   However, the court found that this was inconsistent with the husband’s earlier assertion that he had already moved out by June.    In yet another set of court documents, the husband claimed that he had still been living in Ontario in July of that same year.   In one affidavit, he swore that he was using his father’s condo at some point, but that he was using a drop box in Florida as his address for service.  Sworn statements contained in various other affidavits had the husband living at three different Florida locations in July.  A September affidavit had him living in the Toronto Condo.

The wife, on the other hand, gave evidence that the husband never moved to Florida at all, and had only visited the children there once in July, at a park, and twice briefly in August.

Meanwhile, the husband asserted that in terms of his custody plans, he intended to have the children live with him in Canada; as an alternative he would move them permanently to Florida.

The court found that the phrase “ordinarily resident” embodied the concept that the person’s customary mode of life had to be examined; it did not cover a person’s special, occasional or casual residence.  This took into account the ordinary mode of living, and its “accessories” in terms of social relations, interests or conveniences at that particular location.

In this case, the husband was “ordinarily resident” in Ontario for the 12 months immediately prior to the wife’s divorce claim.  Noting that the husband’s own evidence on the point was inconsistent, and that he had failed to provide any documentation (such as driver’s license or proof of health coverage) which would show that he had moved to Florida.  Furthermore, his most recent affidavit asked the court to allow him to live in Ontario with the children.

Ultimately, the court found that – despite having visited or stayed in Florida on a few occasions in 2011 – the husband was ordinarily resident in Ontario at the material times.

As an aside, the court also had to contend with the husband’s conflicting and contradictory evidence relating to the date of the parties’ separation.   The husband’s evidence on this point was scattershot and inconsistent as well.  As to the husband’s credibility, the court wrote:

Although it is not necessary to my decision, I make a specific finding of credibility against the Respondent [the husband]. According to the real estate lawyer who handled the transfer from the Respondent to his mother in September 2010, the Respondent told him that he and his wife had separated long before she came to [the Toronto condo] and therefore it was not a matrimonial home. In so saying the Respondent withheld material information from the lawyer as to the family living arrangements, marriage counseling and final date of separation. … The Respondent made no reference to or any explanation whatsoever of the statements attributed to him by the lawyer.  In these circumstances it is, in my view in the interest of justice to draw an inference and make an adverse finding of credibility against him …

Next, the court had to grapple with the issue of whether the Ontario court or the Florida court was the most appropriate forum in which to have the trial itself.  (Procedurally the court has a right, in cases where another forum is more appropriate – after taking into account the location of the parties, the witnesses, the evidence, and various other procedural and geographical factors – to decline to exercise its jurisdiction to hear any court matter).    
In this case, the wife and children now lived in Florida, and the husband had visited them there on a few occasions.   In these circumstances, it would be unusual for an Ontario court to maintain jurisdiction over custody issues when the children were not even living there.    On the other hand, certain key witnesses and the grandmother (who would give evidence on issues relating to the matrimonial home) all lived in Ontario.  The Ontario court also had a certain legal advantage over the Florida court, in terms of the orders it was entitled to make.

In the end, the court ordered that:

• the Toronto condo was deemed to be a “matrimonial home”;

• title to the deceased’s father’s condo, which had been transferred to the mother, was revested into the husband’s name; and

• since Ontario had the closer connection to the dispute, the court declined to allow the matter to be heard in Florida; rather it was ordered to proceed to trial before an Ontario court.

For the full-text of the decision, see:

Alcaniz v. Willoughby, 2011 ONSC 7045  http://canlii.ca/t/fp7nr

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 www.RussellAlexander.com

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