Recent case: Moving with children

Bourke v Davis 2021 ONCA 97: This is a decision by the Court of the Appeal, in response to an appeal brought by the applicant, the father, from a trial decision that allowed the respondent mother to move to Washington State with the couple’s two children. The mother had married a man who lived in Washington and had recently had a baby in that relationship.

The appellant obtained a stay pending the outcome of the appeal and, as a result, the children had remained in Ontario with the appellant during that time.

The family lived in an Ontario city at the time of separation, and the children remained there with the mother after separation. The appellant, who had transitioned from male to female following the birth of the second child, left the city but continued to live close by.

While the children lived with the mother, they regularly spent time with the appellant, with the amount of time gradually increasing over time and including overnights.

The mother’s second husband was able, before the pandemic, to divide his work time equally between Ontario and Washington and, as of the start of the pandemic, to work from Ontario full time on a Canadian work visa, which expired at the end of 2020 with no possibility of renewal, meaning he had to return to Washington.

In the original trial, the court considered the report of an OCL investigator, who recommended against the relocation of the children to Washington.

In making his decision to allow the children to relocate, Justice Broad first determined custody and then moved to consider the relocation question. As the Court of Appeal noted:

The trial judge noted that he was not required to ‘apply a standard of perfection in assessing the parties’ ability to communicate and work together. It [was] sufficient if the necessary cooperation [was] workable and adequate. He ultimately concluded that the parties had the ability to make decisions respecting the best interests of the children. . . [and] found that an order for joint custody would be in the children’s best interests.

Justice Broad found that the mother had a practical and realistic plan to maintain the children’s relationship with the appellant, even if they lived primarily in Washington, and that her plans were child-focused. He found no suggestion that the mother’s decision to move was to improperly deprive the appellant of time with the children.

He also decided that, because the children would be primarily resident with her, the mother should have final decision-making authority, but only as a last resort and “if necessary after meaningful consultation.”

Noting that appeal courts are to give considerable deference to the decisions of trial judges on custody and access matters, the Court of Appeal:

• Upheld the trial judge’s decision to accept the fact that the mother would move to Washington with or without the children and that the status quo was not an option for the court to consider
• Found that the trial judge was focused on the best interests of the children
• Agreed with the trial judge that the mother’s plan sought to maximize the children’s time with the appellant
• Found that the trial judge carefully considered the OCL recommendations and followed those that he felt were in the best interests of the children

The Court of Appeal dismissed the appeal on the grounds raised by the appellant, but made some minor adjustments to the trial decision to reflect the fact that the children had remained in Ontario pending the outcome of the appeal and to conform with pandemic travel restrictions.