Recent case law: Court deals with mother’s unilateral decision to move with her child

In the case of Alix v Irwin, 2014 CarswellSask 253 (Sas. C.A.), the Saskatchewan Court of Appeal dealt with a situation where the mother made a unilateral decision to move with the child.

The parents, who lived in Swift Current, had joint custody of their 3-year-old child under an earlier court order. The child lived primarily with the mother and the father had extensive access until the mother, without notice to the father, moved the child to Moose Jaw – a drive of more than 1.5 hours from where the father was living. She said she could find better housing there and would be closer to her family.

This move meant the father was unable to exercise access for a number of weeks and interfered significantly with the parenting plan that was in place.

The father asked the court to vary the existing custody order to give him primary care of the child or, alternatively, to require the mother to return the child to Swift Current. The trial judge ruled that the move was not a material change in circumstances and dismissed the application.

The father appealed to the Court of Appeal, which found that the trial judge had erred by not examining adequately the impact on the child’s relationship with the father or the extent to which the father’s ability to meet the child’s needs had changed because of the mother’s unilateral decision to move the child.

The Court of Appeal determined that, with a distance of more than 156 kilometres between him and the child, the father would clearly not be able to exercise the mid-week access provided in the original joint custody order. He would also no longer be able to spend additional time with the child when the mother needed child care, as he had been doing before she moved. Even weekend access would become complicated as the child became involved in extra-curricular activities, and it would no longer be possible for the parents to share special dates such as the child’s birthday, Christmas and so on.

It is important to understand that the Court of Appeal did not say the mother could not move. Rather, it said the trial court had not examined certain issues adequately and ordered the case back for another trial. It is possible that the judge in the new trial would make the appropriate examinations and decide that it was, nonetheless, in the best interests of the child to move with her mother.

It is interesting to note that the mother did not have legal representation at the trial or appeal. If she were able to retain a lawyer for the new trial, her case might be strengthened by the provision of strong evidence about why the move is in the child’s best interests and by the introduction of a parenting plan that better reflects the spirit of the initial joint custody order by providing more opportunities for the father to see his daughter, shared driving for access visits and so on.

If you are supporting women who want to move with their children, this case provides an interesting analysis. You can also review an earlier case summary about moving with a child.

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