Mobility: Recent case law

The case of Boudreault v Charles, 2014 ONCJ 273 (XanLII) explores the factors for a judge to consider when hearing a motion for an interim order to relocate a child.

In this case, the mother already had interim custody and the father had supervised access to the 3-year-old child. The access occurred weekly at a supervised access centre in Toronto. The father had never had unsupervised access to the child.

The mother brought a motion to relocate with the child from Toronto to Montreal, and the father opposed it.

In 2012, approximately two years before this motion, the father assaulted the mother while she was holding the child. He was convicted for this assault and given a suspended sentence and a year of probation, during which time he was required to attend a PAR program and not to come within 100 metres of the mother.

Justice Sherr provides a comprehensive review of the case law in reaching his decision, and sets out a number of principles that are to be used when determining both interim and permanent relocation of children.

On a motion for an interim order to relocate, Justice Sherr wrote:

  • A court will be reluctant to upset the status quo if there is a genuine issue for trial
  • Even where there is a genuine issue for trial, an interim move may be permitted if there is a strong possibility the custodial parent will be successful at trial
  • Courts will be very cautious to allow a temporary relocation where long distances are involved
  • Courts will be cautious to allow a temporary move if no custody order is in place
  • Where there are compelling circumstances, the interim move may be permitted
  • The court must consider any violence or abuse when considering the best interests test

Where the custodial parent is seeking a permanent order to move the child, the court will:

  • Give considerable respect to the views of the custodial parent
  • Focus on the best interests of the child and not on the interests and rights of the parents
  • Review the existing custody and access arrangements and the relationship between the chid and each parent
  • Consider the desirability of maximizing contact between the child and both parents
  • Take into account the views of the child
  • Consider the custodial parent’s reasons for wanting to move only where those are relevant to the parent’s ability to meet the child’s needs
  • Consider the disruption to the child of the move (eg separation from family and friends, removal from school and activities, etc.)

The court will weigh the importance of the child remaining with her/his custodial parent against the continuance of full contact with the access parent and the community from which s/he is being moved.

In other words, what is in the best interests of the child in all the circumstances, both old and new.

Justice Sherr notes: “Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child.”

As he quotes from an earlier case: “An order restricting the residence of the children would . . . condemn the mother and children ‘to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint.’”

In the case before him, Justice Sherr noted that the evidence was overwhelming that at trial the mother would be permitted to move with the child for a number of reasons:

  • The mother is the custodial parent and so her wishes are to be given considerable respect
  • The child has always lived with the mother, who has always had responsibility for the details for the child’s life. She is the parent to whom the child is primarily attached
  • The child’s involvement with the father, while pleasant, has been very limited and supervised
  • The mother recognizes the importance of maintaining a relationship for the child with his father and has made proposals for alternate access arrangements if she is permitted to move
  • The mother is isolated in Toronto
  • The mother will receive considerable family support in Montreal
  • Because of help from her family, the mother will be more financially secure in Montreal
  • The mother is more likely to become employed in Montreal
  • There is no evidence that the mother is making this move to interfere in the father’s relationship with or access to his son
  • The evidence shows that the mother has made responsible decisions for the child
  • The child will not experience disruption in his life by moving to Montreal
  • There is no genuine issue for trial regarding the move to Montreal
  • There are compelling circumstances to permit the move to take place now

As Justice Sherr wrote: “The mother will likely be a happier and better-functioning parent in Montreal. This will benefit the child.”

The case goes on to explore the father’s counter-motion for increased and unsupervised access, which was denied by Justice Sherr. He outlined a number of strong reasons for denying the motion, many of them related to the past history of abuse and the father’s refusal to take responsibility for his actions as well as concerns about the father’s ability to safely and responsibly parent the child, given his anger and self-control issues.

This is a good case. Justice Sherr’s succinct and clear tying together of children’s and mother’s best interests is important. As well, the lists of factors to be considered in mobility cases will be helpful if you are supporting a woman who wants to move to a new community with her children.

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