Thie v Thie 2014 ABCA 249, Dedes v Dedes 2015 BCCA 194, both dealing with the ability of a mother to move with the children, are of interest to us in Ontario because both are decided under the Divorce Act and not provincial legislation, even though they are decided by Courts of Appeal in other provinces (Alberta and British Columbia).
Of course, the facts are different in each case, but the central issue is similar. In both cases, the court had to determined whether the request by the mother to move was based on a material change in circumstances or whether, in fact, the possibility of the move was known at the time the custody and access arrangements was put in place.
In Thie, the parents had signed Minutes of Settlement in which they agreed they would have joint custody of the children, who would be primarily resident with the mother, and that the children’s primary residence would not be changed without the written agreement of both parties or an order from the court.
In Dedes, the parents had entered into a consent order which called for joint custody and a shared parenting arrangement in which each parent had custody of the children in a week-on, week-off arrangement. The order also contained a non-removal clause.
In both cases, over time the mother became involved with and eventually married someone from another province and then wanted to relocate, with the children, to live with her new husband.
In the Dedes case, the chambers found, on a balance of probabilities, that the mother had not shown there was a material change in circumstances, and did not permit the move from British Columbia to Ontario. The judge said that she knew or could reasonably have foreseen she might want to move at the time she entered into the consent order.
The mother appealed this decision.
In overturning the chambers judge’s decision, the Court of Appeal reviews a number of cases that addressed this issue, in particular the well-known Supreme Court of Canada decision in Gordon v Goertz  2 S.C.R. 27 and concludes that the correct questions to be asked in deciding whether there has been a material change in circumstances are:
Ø Was the proposed move of the children a change in circumstances that was actually contemplated at the time the agreement was entered into?
Ø If not, is it in the best interests of the children to move?
The test for material change, according to the British Columbia Court of Appeal, is not based on what one party knew or reasonably foresaw but on what the parties actually contemplated at the time the order was made or agreement entered into.
The Court of Appeal sent the case to the trial court for reconsideration of whether there was a material change in circumstances.
In the Thie case, the trial judge found that a material change of circumstances was met. He said that, while a move by the mother to live with her fiancé was a possibility in her mind at the time the Minutes of Settlement were signed, it was just that – a possibility.
It is not the law in Canada that a party is under an obligation to bring to the court’s attention upon application for a divorce judgment that she had or had not entertained the possibility or probability of a future move with the children.
He also concluded that the move would be in the children’s best interests, finding that the mother had primary residence, was a good mother and that the father was in a financial position to continue to enjoy access through a flexible access arrangement.
The father appealed this decision, but the Court of Appeal upheld the decision of the trial court.