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MOBILITY OF CUSTODIAL PARENTS:A REVIEW OF RECENT CASES

Donna ScottFamilyLawDivision

9thFloor, 224 - 4th Ave. S.Saskatoon, Sask. S7K2H6

Ph: 933-5120 Fax: 933-5703

BIOGRAPHICAL INFORMATION

Donna Scott

Donna received a B.A. from the University of Saskatchewan in 1977 and her LL.B; also from the Universityof Saskatchewan in 1981. She was called to the Saskatchewan bar in 1982. Donna practices in the areaof family law; She has addressed a number of classes in the College of Law and the School of HumanJustice on a variety of topics related to family law. In 1990, Donna was a presenter at the CLE seminar"Enforcement Issues in Family Law" and in 1994, was Co-chair for the "Changing FamilyLaw Practice"~eminar. She.also·reviewed the materials for the family law section of the Bar Admission Course in 1992.Donna is now Co-ordinator of the Family Law Division and is located in Saskatoon.

1

MOBILITY OF CUSTODIAL PARENTS: A REVIEW OF RECENT CASES

Ofthe many issues faced by custodial and non-custodial parents, the issue surrounding the custodial

parentis right to relocate with the children, is possibly the most contentious. "Mobility cases are

among the most hotly contested custody and access cases", says James G. McLeod, in his annotation

to the recent and highly publicized MacG.yyer v. Richards decision of the Ontario Court ofAppeal,

reported at 11 RF.L. (4th) 432 (copy attached). In that case, the custodial parent of a 6 year old

daughter intended to leave Ontario and relocate to the United States to be with her fiancee. The non­

custodialparent, who had an established schedule ofvisits with the child, opposed the mother's move

and made application to restrain the mother from relocating. Madam Justice Abella, writing for the

majority, in deciding that the mother should be allowed to move with the daughter, states at page

445:

...the court should be overwhelmingly respectful ofthe decision-makingcapacity ofthe person in whom the court or the other parent hasentrusted primary responsibility for the child. We cannot design a systemwhich shields the non-custodial parent from any change in the custodialparent's life which may affect the exercise ofaccess. The emphasisshould be, rather, on deferring to the decision-making responS1oilities ofthecustodial parent, unless there is substantial evidence that those decisionsimpair the child's, not the access parent's, long-term well-being.

While concuning with Abella, lA's disposition ofthe appeal, Labrosse, lA in his reasons, applied

the factors set out in the leading case in Ontario, ~v. Brooks (1990),2 O.R (3d) 321 (C.A),

for determining what is in the best interests of the child in these situations. In particular, he

considered whether the custodial parent had a good reason for the proposed moved. In examining

the purpose ofthe change in residence, Justice Labrosse concluded that the mother's intention was

not to frustrate access but to form a IIstable family relationship".

2

The Manitoba Court ofAppeal was faced with this issue in the case ofLapointe v. Lapointe (copy

attached), which was decided October 20, 1995, and is, as yet, unreported. In that case, the mother

intended to relocate with her children to Alberta from Manitoba, to live closer to her siblings and their

families. In reaching its decision to allow the mother to move, the court attempted to reconcile the

different approaches taken in~ v. Brooks and MacG.yyer v. Richards, which the court likens to

being as "different from the other as oil from water". After surveying, historically, the rights ofthe

custodial parent, the court concludes that the better approach is that taken in MacG.yyer, "subject to

sufficient safeguards to ensure that the custodial parent does not act maliciously, unreasonably or

contrary to what is adjudged to be the best interests ofthe child in any special circumstances which

may be applicable".

The issue ofmobility of custodial parents has been before the Saskatchewan courts, as well. In the

recent decision, Yackel {Brothwell)v. BrothweU, (copy attached), Madam Justice M. Y. Carter was

faced with an application to vary an order granting joint custody to the parents oftwo boys, who

resided principally with the father and had generous access to the mother. The father intended to

move to Ontario to enroll in a course that would enable him to pursue a different direction in his

career, as a result ofsuffering a disability. Madam Justice Carter dismissed the mother's application

to vary the terms ofcustody, thereby allowing the father to relocate with the sons. Her decision was

based upon the fact that the father had been the primary caregiver and that his motive for moving was

not to frustrate the mother's access. In reaching her decision, Madam Justice Carter surveyed a

number ofthe cases in this area, including .cm:m: v. Brooks (supra). She concludes by quoting from

the decision ofKor,pesho v. Kor,pesho (1982) 31 RF.L. (2d) 440 (Man. C.A.) wherein the court

states at page 451:

Society permits divorce and permits or even encourages remarriages.Once a second stable union has been established the new spouses orthe new family unit must be allowed to live a normal family life.

In a country as vast as ours, with various economic regions, peoplemay haveto move from one province to another...in search ofemployment or to better one's type ofemployment.

3

It appears that in addition to considering the reasons for the move and whether the move is in the best

interests ofthe child, the court will also recognize the social context in which the decision to move

is made.

Would the reasoning in MacG.yyer apply to a joint custody situation? Carter, 1. did not consider the

MacG.yyer decision (supra), in BrothwelJ, where the parenting arrangement was one ofjoint custody.

Ahhough Abella, 1.A.'s decision seems to be largely based on the custodial parent's power to make

decisions on behalfofthe child, she also does refer to "primary caregiver" throughout the MacG.yyer

judgment.

The Manitoba decision ofLapointe v. Lapointe (supra) dealt with this issue in the context ofa joint

custody agreement, which provided that the primary care and control was with the mother and that

the mother should "have ultimate decision-making power with respect to issues involving the

children". The court in that decision did apply the MacGyver decision in those circumstances.

The decision ofLevesque v. Lapointe (1993) 44 RF.L. (3d) (B.C.C.A.), allowed a mother to move

with the children from British Columbia to Alberta, where the mother and father had entered into a

joint custody agreement, which provided for the children living with the mother during the school

year and with their father during the summer break and two out of every three weekends. The

agreement also provided that custodial arrangments could be reviewed ifeither party contemplated

a move from the city in which they resided. The mother and her new husband wished to move to

Alberta, where he had lived and worked. The court allowed the mother to relocate, stating that the

joint custody arrangement cannot compel parents to live in close proximity to one another. The court

applied the principles in Carter v. Brooks (supra), and found that because the mother had been the

primary caregiver and her decision to move was made in good faith, she should be allowed to relocate

with the children.

A further decision referred to by Carter, 1. in Brothwell (supra) is Gordon v. Goertz, an unreported

4

oral decision ofMr. Justice Gagne. In that case, the custodial parent, a dentist, sought to move with

her daughter to Australia, to attend a University so that she might qualifY as an orthodontist. The

father opposed the move and brought application to restrain the mother from taking the child with

her to Australia. Mr. Justice Gagne, ordered that the mother could move to Australia with the child,

and the father would have liberal and generous access to his daughter in Australia on one month's

notice. On appeal by the father, the Court ofAppeal upheld the decision ofGagne, 1. The father has

been granted leave to appeal to the Supreme Court ofCanada. That case will be argued before the

Supreme Court, December 6, 1995.

432 REPORTS OF FAMILY LAW II R.F.L. (4th) MacGyver v. Richards 433

[Indexed as: MacGyver v. Richards]

LEE CHAN MAcGYVER v. MARY CATHERINE RICHARDS

Ontario Court of AppealGrange, Labrosse and Abella JJ.A.

Heard - lanuary II, 1995.ludgment - March 23, 1995.

Children - Custody and access - Incidents 01 custody - Mobility - Child bornalter relationship between mother and lather had ended - Mother having cus­tody and lather exercising access - Father unemployed and providing no sup­port - Mother lorming relationship with man in army - Couple making plansto marry - Man translerred to United States - Mother wishing to move toUnited States to lorm new family unit - Father opposing move - Trial judgeconfirming in best interests 01 child to be with mother but denying motherpermission to move - Decision reversed on appeal - Father appealing to Courtof Appeal - Child's best interests tied to mother - Custodial parent having rightto form new lamily unit - Mother's luture not to be restricted because offather's access - Mother having valid reason for move - Mother allowed tomove - Children's Law Relorm Act, R.S.O. 1990, c. C.l2.

The child was born in December 1989, after the relationship between themother and father had ended. The mother and father attempted a reconciliation, butthe father's conduct became intolerable to the mother and the relationship brokedown again. The child lived with the mother throughout the period. In 1991, themother was granted custody and the father received access pursuant to minutes of

.settlement. The mother became involved with a man in the army and they madeplans to marry. The man was transferred to the United States and the mother wishedto move with the child to form a new family unit. The father opposed the move andapplied to restrain the mother's proposed move. The trial judge held that it was inthe best interests of the child to be with the mother but refused to approve themother's proposed move with the child. On appeal, the mother's custody wasconfirmed and the move was approved.

The father appealed to the Court of Appeal.

Held - The appeal was dismissed.

Per Abella I.A. (Grange I.A. concurring): The question of whether the courtshould approve the mother's proposed move should be determined according to thebest interests of the child. In deciding what is in the best interests of the child. ajudge should consider the consequences of the move on the future of the parents andthe child. The custodial parent is in the best position to appreciate the effect of aproposed move on the child. There should be a presumptive deference to the needsof the responsible custodial parent who deals with the reality of decisions relating tocustody and access. The best-interests test should take into account the rehabilitativerights and needs of every adult and child recovering from the dissolution of a family.The needs of the custodial parent outweigh the wishes of the access parent. Thecustodial mother should not be forced to choose between her child and her marriage.The child's long-term best interests are tied to those of the primary caregiver. Themother had a v?'~-eason for wanting to move. A reduction in access was not a

ground in itself to deny the move. Accordingly, the mother should be allowed tomove with the child and the appeal should be dismissed.

Per Labrosse I.A.: The decision of the trial judge was clearly wrong. The trialjudge placed too much emphasis on the relationship between the child and the accessparent, and not enough emphasis on the relationship between the child and thecustodial mother. The mother should have been allowed to move with the child.

AnnotationMobility cases are among the most hotly contested custody and access cases.

That one parent may unilaterally restrict or extinguish the other parent's contact withthe child is difficult for many people to accept. Yet. Abella I.A.'s comments inMacGyver v. Richards make clear that the law may have reached that point.

The leading mobility case has been Carter v. Brooks (1990), 30 R.F.L. (3d) 53(Ont. C.A.) where Morden A.C.I.O. held that the right to change a child's residencewas too important a decision to be left to one parent. If the parties could not agreeon a proposed move, the matter was to be put before a judge. Whether a parent hasthe right to move with a child. like all other custody and access decisions, wasgoverned by the best interests of the child. While a custodial parent did not have apresumptive right to move with a child, his or her views and wishes were entitled togreat weight. Other factors to consider in deciding the best interests of the childincluded the reason for the move and whether access could be restructured to main­tain a relationship between the access parent and the child.

Following Carter v. Brooks, most cases were consistent with a three-stepanalysis:

I. Does the custodial parent have a good reason for the proposed move?

2. Is there any obvious benefit or detriment (aside from reduced access) to the childfrom the proposed move?

3. Will the custodial parent co-operate in restructuring meaningful access?

In the end, the decision in most cases comes down to whether the custodialparent has a sufficient reason for the proposed move to justify the reduction in accessinherent in the move. While there is significant case law to support the propositionthat access is the right of the child, not the parent (see, e.g., YOll1lg \'. YOll1lg (1993),49 R.F.L. (3d) 118 (S.c.c.», mobility cases invariably are defended on the basis thatthere is no reason to interfere with the access parent's contact with the child. It isinteresting to note that there is no case where an access parent has been restrainedfrom moving, notwithstanding the fact that the move will restrict the child's contactwith such parent and the possibility that it may increase the financial and emotionalburden on the custodial parent. However, many judges have restrained the custodialparent from moving, at least when that parent wants to remain the primary caregiverto the children.

The question in most mobility cases is whether the fact that it is in the child'sbest interests to be with one parent rather than the other means that that parentshould not be able to get on with his or, more commonly, her life. Many mobilitycases involve requests by custodial mothers to move with the child in order to keep asecond family together. The choice for the mother is between hern.e~~· partner and

434 REPORTS OF FAMILY LAW II R.F.L. (4th) MacGyver v. Richards435

her children. The assumption of a parental role by the new partner, and the potential.increase of that role if the move is allowed, will only strengthen the determination ofmany access parents to oppose the move.

In most cases where the move has been denied, the court has held that thebond between the child and the access parent is too important to be interfered with:Brigante v. Brigante (1991), 32 R.F.L. (3d) 299 (Ont. U.F.C.); Ligate v. Richardson(March 2,1995), Doc. 94-FL-315I, Greer l. (Ont. Gen. Div.), (1995] W.D.F.L. 803.With respect, that attitude is short-sighted. Access is most successful if the custodialparent co-operates and promotes access. The best way to ensure that custodialparents will interfere with and limit access is to tell them that if they co-operate andpromote access, they will not be allowed to get on with their lives but will forever beshackled to the access parents.

In Duncan v. Kuipers (February 27, 1995), Doc. Brandon Centre 90-02-216FD, Mykle l. (Man. Q.B.), (1995] W.D.F.L. 554, the mother wished to move fromManitoba to British Columbia to pursue employment opportunities. She testifiedthat she had secured a substitute teaching position in British Columbia which shestated would become a full-time position. Mykle l. stated that the mother had notmade sufficient efforts to find work in Manitoba. He interpreted the mother's actionsas being intended to frustrate the father's access rather than to promote her economicwell-being. Accordingly, he held that the mother could not remove the child fromManitoba.

Where a proposed move is undertaken to frustrate access, the move should berefused. However, a court should not draw this conclusion easily. A court shouldnot expect people to have altruistic or pure intentions. Former partners often areinconvenient and it is not unusual for tension to arise between the parents. Suchtension is likely to increase around a mobility dispute. That a custodial parentwelcomes the potential reduction in contact with an access parent inherent in a moveshould not lead a judge to deny the move. Before a court denies the move in theabsence of detriment to the child, it should be satisfied that the move is primarilyintended to, and will, frustrate access.

It is improper to focus on the decrease in access when assessing the bestinterests of the child. Except in cases where there should not be unsupervisedaccess, it is difficult to see why, in the abstract, access should ever be restricted. Thequestion should not be whether it is in the child's interests to decrease access, butwhether there is a good reason to decrease access.

In MacGyver v. Richards, Abella l.A. shifted the focus in mobility cases fromwhether a decrease in access would be in the best interests of the child to whetherthere was a sufficient reason for the move to justify reducing the child's contact withthe access parent. The clear message from her reasons is that a custodial parent whohas a good reason for moving should be allowed to move unless there is cleardetriment to the child.

Abella l.A.'s reasons are clear and speak for themselves. The question iswhether they are consistent with the reasons in Carler v. Brooks and, if not, whichdecision should be followed. If the decisions are inconsistent, the subsequent deci­sion is deemed to have overruled the prior decision to the extent of the inconsis­tency, and the second decision should be followed.

However, it is submitted that the decisions are not inconsistent. Abella l.A.adverted to Carter v. Brooks and stated that she was basing her decision on the bestinterests of the child. What she has done is to extend to mobility cases the contex­tual result-oriented approach of the Supreme Court of Canada in Moge v. Mage,[1992] 3 S.C.R 813,43 RF.L. (3d) 345, [I993J I W.W.R 481, 145 N.R 1,81 Man.R (2d) 161,30 W.A.C. 161,99 D.L.R (4th) 456 and Peter l'. Beb/ow, (1993) IS.C.R 980, 44 RF.L. (3d) 329, [1993] 3 W.W.R. 337, 77 B.C.L.R (2d) I, 48 E.T.R.I, 150 N.R. 1,23 B.C.A.C. 81, 39 W.A.e. 81, 101 D.L.R (4th) 621.

Law does not exist in a vacuum and courts should not pretend that it does. InMacGyver v. Richards, Abella l.A. examines the plight of custodial parents. most ofwhom are mothers with limited resources. To deny a right to move for economicreasons may force a mother and child into a life of poverty. Onen an access parentdoes not have sufficient income to fully provide for a custodial mother and child. Ifhe did, he probably would have been able to fund regular and frequent access, andthe case could have been settled. To deny a mother the right to move to be with anew partner denies her the right to get on with her life following family breakdown.To force her to choose between a new life and the children is unfair and may notpromote the children's interests. If reduced contact with an access parent is upset­ting to a child, reduced contact with a custodial parent will be even more upsening.

One interesting point is whether Abella l.A. would have reached a differentconclusion if there had been a joint custody order or agreement. In MacG.\Ter. themother had sole custody. At one point, Abella l.A. referred to the right to change thechild's residence as an incident of custody. She also noted that the custodial parenthas been trusted with the power to make decisions on behalf of the child and that amobility decision is not very different from various other decisions a parent makes.However, Abella l.A. also emphasized the importance of focusing on the reality of acase and the consequences of the decision to move for the parents and child. Thatemphasis suggests that Abella lA. 's approach would extend to the primarycaregiver, regardless of the form of the child-care arrangement. Her reasons reflect areturn to realistic jurisprudence. Law should be judged by its consequences. Ajudge should look at the consequences on parenting generally that result from allow­ing or withholding permission to move. Law is an instrument of social regulation. Arule of law should be accepted or rejected on the basis of whether the resulting socialreality is acceptable given prevailing social, political, economic and religious values.

It is worth noting that Abella l.A. used the term "primary caregiver" withregularity. The values that the reasons promote reflect the concerns of primarycaregivers, not just parents who have sole custody. In some cases, sole custody isawarded because the primary caregiver refuses to communicate with the accessparent. In other cases, the primary caregiver agrees to joint custody to accommodatethe emotional demands of the other parent. Why should the caregiver parent be in abetter legal position than the other parent? It is submitted that, in deciding mobilitycases, a court should concentrate on the substance of the parenting arrangements andnot the form: Levesque v. Lapointe (1993), 44 RF.L. (3d) 316. 75 B.CL.R (2d) J.99 D.L.R (4th) 667, 21 B.C.A.e. 285, 37 WAC. 285 (CA.); Luckhuw 1'.

Luckhurst (May 24, 1995), Doc. 1010, Hockin 1 (Onl. Gen. Div.) (mother sharingjoint custody allowed to move to keep second family intact).

The reasons for judgment in MacGyver v. Richards are likely to generateappeals by custodial parents who are denied the right to move. For example, inLigate v. Richardson, supra, Greer J. denied a mother's request to move with the

436 REPORTS OF FAMILY LAW II RF.L. (4th) MacGyver v. Richards Abella l.A. 437

child from Toronto to Cambridge, Ontario. There is no indication that the move wasproposed in bad faith. The apparent reason for the denial is that the move was not"necessary". In MacGyver v. Richards, Abella l.A. stated that that reason in itself isnot sufficient to deny the move. It is difficult to read the reasons in MacGyver v.Richards as denying the move proposed in Ligate v. Richardson.

It is important for the law in the area to be certain. It is also important for theappeal courts to ensure that the law is consistently applied. Notwithstanding thenarrow scope of appellate review in custody cases, the appeal courts should ensurethat trial judges apply the same rules, not just state the same words.

If there is conflict between MacGyver and Carter Y. Brooks, the Court ofAppeal should resolve the conflict. At the same time, the Court of Appeal shouldaddress the issue of whether there is any difference in the analysis if the parties havejoint custody rather than one parent having sole custody. In a related vein, whateffect should the words of a domestic contract have on a mobility case? The basicthrust of MacGyver v. Richards is clear - a primary caregiver usually should beallowed to move with a child if he or she has a good reason for the proposed move.However, the effect that the case will ultimately have depends on how it is inter­preted and applied by judges in subsequent cases.

James G. McLeod

Cases considered

By Abella l.A. (Grange l.A. concurring)

Carter v. Brooks (1990),30 RF.L. (3d) 53, 41 O.A.C. 389, 77 D.L.R. (4th) 45, 2O.R (3d) 321 (C.A.) - applied.

Field v. Field (1978),6 R.F.L. (2d) 278 (Ont. H.C.) - referred to.Landry v. Lavers (1985), 45 R.F.L. (2d) 235, 50 O.R. (2d) 415, 17 D.L.R (4th) 190,

10 O.A.C. 244 (C.A.) - referred to.Thomson v. Thomson. (1994) 3 S.C.R 551,6 RF.L. (4th) 290, (19901 10 W.W.R.

513, 173 N.R 83, 119 D.L.R. (4th) 253, 97 Man. R (2d) 81. 79 W.A.C. 81 ­referred to.

Wickham v. Wickham (1983), 35 R.F.L. (2d) 448 (Ont. C.A.) - referred to.Wright v. Wright (1973), 12 RF.L. 200, I O.R (2d) 337, 40 D.L.R (3d) 321 (C.A.)

- referred to.Young v. Young, [1993] 4 S.C.R 3, 49 R.F.L. (3d) 117, (1993) 8 W.W.R. 513, 84

B.C.L.R. (2d) I, 160 N.R. 1,34 B.C.A.C. 161,56 W.A.C. 161, 108 D.L.R.(4th) 193, 18 C.R.R (2d) 41 - referred to.

By Labrosse l.A.

Carter ". Brooks (1990),30 RF.L. (3d) 53, 41 O.A.C. 389, 77 D.L.R. (4th) 45, 2O.R. (3d) 321 (C.A.) - applied.

Statutes consideredChildren's Law Reform Act, RS.O. 1990, c. C.12­

s.24.3

ApPEAL by father from decision of Bolan 1. allowing appealfrom decisior~ judge of Provincial Division and allowing custodial

mother to move with child to United States pursuant to provisions ofChildren's Law Reform Act (Ont.).

Philip M. Zylberberg, for appellant.Barbara Morland Wellard, for respondent.

(Doc. CA C2(084)

March 23, 1995. ABELLA J.A. (GRANGE J.A. concurring): ­The issue in this appeal is whether a custodial parent can changewhere he or she lives when the effect of that change is to prevent theother parent from continuing an established pattern of access with achild.

2 Both parents were thirty at the time of trial. They had met in1983 when they were students at Memorial University ofNewfoundland. The father, Lee MacGyver, left university to work inOntario. The mother, Mary Richards, soon followed. They even­tually moved to North Bay, where these proceedings took place. Inearly 1989, when she was four months pregnant, Mary Richardsmoved back to Newfoundland to live with her mother. The relation­ship with Lee MacGyver had ended by then, largely as a result of hisdrug and alcohol addiction. The child, Vanessa Cheyenne Richards,was born in Newfoundland on December II, 1989.

3 Mary Richards remained with Vanessa in Newfoundland untilthe child was seven months old. Her subsequent return to North Baywas prompted by a desire to give the relationship with the fatheranother chance, in the hope of providing a "family" environment forthe child. This time, however, his addiction was compounded byabusive behaviour towards the mother. They lived together for a totalof only six months. In January 1991, the mother moved with Vanessainto Nipissing Transition House for two months, then into her ownapartment.

4 The father's childhood had been so overwhelmingly andtraumatically abusive that he started drinking when he was six yearsold. By the age of eight, he felt himself to be a "raging alcoholic."His addiction continued until he entered a residential treatmentprogramme in March 1992 and started attending AlcoholicsAnonymous. He is a recovering alcoholic and has not had a drink ortaken drugs since he started intensive treatment for his addiction.According to the witnesses who testified on his behalf, he is com­mitted to refraining from alcohol and drug use. He is attending com­munity college, and hopes to become a family cOlillsellor. His currentsource of income is the disability pension he receives monthly as aresult of his addiction. He provides no support for ~tJ]~ child. Themother receives welfare. .

438 REPORTS OF FAMILY LAW II R.F.L. (4!h) MacGyver v. Richards -- Abella J.A. 439

On June 20, 1991, pursuant to minutes of settlement datedJune 19, 1991, Judge Duchesneau-McLachlan of the Ontario Court(Provincial Division) ordered that the mother be given custody ofVanessa and that the father be given access on alternate weekends,from noon on Saturday until noon on Sunday, in addition to two hoursduring the week. The mother abandoned her claims for child support,supervised access, and a restraining order. In March 1993, thefather's access was expanded from 24 to 48 hours every otherweekend.

Early in 1992, the mother became involved with Ron White, aMaster Corporal with the Department of National Defence. In July1993, White was transferred for four years to Tacoma, Washington.The couple made plans to marry on December 17, 1993, with Vanessaand her mother then moving to Washington to form a new family unit.

In January 1993, the father applied to vary the June 20, 1991consent order from the mother's sole custody to joint custody. Hesought to have Vanessa living with him from Wednesdays at4:00 p.m. until Sundays at 4:00 p.m., to have an equal sharing of allholidays, and to prevent either parent being able to remove the childfrom the jurisdiction of Nipissing without the other parent's consent.The basis for the father's application was his assertion that he hadchanged his behaviour and was no longer abusive or alcoholic.

On December 7, 1993, after a two-day trial, Judge Duchesneau­McLachlan, who had made all the previous orders in connection with'the child, ordered that the mother retain sole custody of Vanessa, whowas by then almost four years old. The father was allowed to con­tinue seeing his daughter for 48 hours every second weekend, but be­cause of the mother's fears over the father's continued abusive andthreatening behaviour, which occasionally resulted in calls to thepolice for assistance, the child was to be picked up from and deliveredto the Supervised Access Centre.

The most contentious part of Judge Duchesneau-McLachlan'sdecision was an order that the child "shall reside in the City of NorthBay until further Order of the Court." The mother successfully ap­pealed to the Ontario Court (General Division). The resulting order,made by Justice Bolan on October 18, ]994, confirmed the mother'ssole custody, stipulated that access to the father be as agreed betweenthe parties, and deleted the requirement that the child remain in NorthBay. The father appealed from that order to this court, seeking tohave the order of Judge Duchesneau-McLachlan restored.

) Judge Duchesneau-McLachlan observed that the mother, exceptfor a six-month period, had had exclusive day-to-day responsibilityfor Vanessa for four years. The father had only recently stoppeddrinking and using drugs. According to a Custody/AccessAssessment prepared by Dr. Matti Saari, the father was "still in a

critical stage of his recovery." Dr. Saari concluded that since Vanessaseemed to be well looked after, sole custody ought to remain with themother, with reasonable access to the father.

II The mother and Ron White told Dr. Saari about their plans tomove with Vanessa to Washington, which would clearly have had theeffect of preventing the father from seeing Vanessa every otherweekend. Nonetheless, Dr. Saari made the following concluding ob­servations [emphasis added]:

I am concerned with the social environment and the role modelsassociated with Vanessa's present and future home environment. Thesocial environmellt afforded by Ms. Richards and her bn.\friend. Mr.White, seems to me to be a more adequate atmosphere for Vanessa atthe immediate time, taking into account the presence of po~itive rolemodels and a more balanced family configuration of a mother andfather figure. However, Mr. MacGyver's commitment to sobrietyseems quite genuine as well. However, being that Mr. MacGyver hasadmitted to have a severe alcohol problem that he him~elf recognizedwas at the foundation of the majority of their marital discord. coupledwith the facts that he just recently disclosed his own severe hi~tory ofabuse, and that it has only been just over a year that he has been"clean", I feel some concern that the potential risk of relapse is stillhigh for Mr. MacGyver ...

Mr. MacGyver's arguments stating that Vanessa should be~t beremoved from her mother because she has a problem with drugs andalcohol were not convincing, while Ms. Richards' argument that hehad a problem with same were more convincing. convincing to thepoint they were confirmed by Mr. MacGyver himself. I think thatshould Mr. MacGyver be successful in staying away from the al­cohol, then he most definitely would be a fine role model for hisdaughter, someone who was willing to examine his lifestyle. realize itwas dysfunctional, and proceed to do something about it. Right now.however, it is too early to say; but what has been seen and heard iscommendable on Mr. MacGyver's behalf.

... I strongly urge both Mr. MacGyver and Ms. Richards to restraintheir personal demonstrations of animosity and accept the fact oftheir changed life circumstances for Vanessa's sake.

12 The father's abusive conduct towards the mother, and his fluc-tuating interest in the child prior to his intensive treatment for addic­tion in ]992, were taken into account in deciding that Vanessa'smother was the parent most likely to provide care consistent with herbest interests. While that conduct is undoubtedly relevant, I think thequestion of whether Vanessa should be required to remain in NorthBay should be analyzed based on the father's current warm relation­ship with his daughter, and on an assumption of the father's sincerity

440 REPORTS OF FAMILY LAW II R.F.L. (4th) MacGyver v. Richards Abella J.A. 44 J

in declaring his commitment to sobriety. The issue in this appeal,therefore, is not the scope of the right to move when one parent isabusive, but the scope of that right even when he or she is not.

What was before the trial judge was an application to vary aJ7-month-old consent custody order. In deciding that the order givingthe mother sole custody should not be varied to one of joint custody,Judge Duchesneau-McLachlan emphatically concluded that:

it's absolutely impossible for me to conceive of these two partiesactually getting along well enough together to be able to discuss, letalone reach. any decision for the best interests of this child.

The evidence amply supports this conclusion. There wasvoluminous, undisputed evidence that the father refused to accept thatthe relationship was over, even though he was involved with anotherwoman. His behaviour prior to his treatment for addiction in March1992 was volatile and abusive. This hostility did not subside withsobriety; he continued to stalk, harass, threaten, and generally demandaccountability for the mother's personal - as opposed to maternal ­conduct. On one occasion he broke into her apartment in a rage,screaming at her in front of their terrified daughter. While genuinelyclose to Vanessa, he would, not infrequently, profoundly disappointher by deciding at the last minute not to visit her when he was angry ather mother. After visits with her father, Vanessa would sometimescome home and angrily call her mother "a bitch" and "home­'wrecker."

The father was commended by the trial judge for his sincere ef­forts to conquer his addiction to alcohol and drugs. She found asfollows:

certainly at this point in time he gives the impression .through histestimony and through the testimony of his witnesses. that he wishesto continue in this and that he wishes to embark on a new life. andit's fair to say that he sees his child. Vanessa. as part of that life.

However, the trial judge also recognized that, despite his treat­ment, the father's past conduct was relevant both to his request forjoint custody and his parenting ability (Children's Law Reform Act,R.S.O. 1990, c. C.12, s. 24(3». As she stated:

What he must understand. however, is that. although he has takengiant steps, for which he is to be commended. it is very difficult foranother party, who has been part of his life prior to this giant step. toforget the conduct which he would have entered into. and the allitudewhich he would have presented during that former life. It cannothave been pleasant for his partner at the time. Mary Cathy Richards.And I accept that - despite the way Mr. MacGyver might presenthimself today - I accept that. because of his past conduct, which hemay or ~~ot recall. that [she] would have some residual fear ofhim.

17 This observation led the trial judge to conclude that joint cus-tody was not a viable alternative. Although she did not specificallysay so, the trial judge must implicitly have found that the father'sabstinence from drugs and alcohol was not a material change in cir­cumstance warranting a variation of the mother's sole custody. Therewas, in short, no evidence to justify disturbing the child's living withher mother [emphasis added]:

I have to appreciate that a change in sole custody ... would ... bedifficult on the child, because ofcourse the child has basically beencared for by her mother, although the father has helped from time totime and he has been a lot better since he has obtained treatment.

The trial judge concluded [emphasis added]:

Had I not been faced with this evidence [of the mother's in­tended marriage and move to Washington] I am convinced that theproper order would have been, without doubt, the retention of solecustody by the mother. with generous specific access to the father.

18 There is. nothing in the trial judge's reasons to indicate why themother's intended marriage and move were detrimental to an award 01sole custody. Several times in her reasons, the trial judge acceptedthat the only reasonable order in the circumstances was that there beno variation in the custody arrangement. Unequivocally, she tied thechild's best interests exclusively to the mother.

I have come to a determination that. to my mind. joint custody won'twork - not at this time. I feel that. in the best interests of this child.the mother has to retain sole custody.

For reasons that remain unclear from her reasons, however, the trialjudge added:

I also feel that the child must remain in the North Bay area.

19 The trial judge found that several factors weighed in favour ofthe proposed move: the mother has always cared for the child:Vanessa was happy to go to Washington with her mother and RonWhite, whom the child called "her bestest friend"; the assessment con­cluded that the child be part of the mother's proposed new family; theDepartment of National Defence was prepared to pay for two acces~

visits per year for Vanessa with her father; and "preventing the childfrom going with her mother to Tacoma, Washington. for a period offour years ... would prove a difficulty for the mother because ob­viously she is in love with Mr. White and would like to marry him."

20 She balanced these against the following factors: the preexisting affectionate relationship between Vanessa and her fathertaking the child away "from an environment she k"'.qws"; taking hel

142 --REPORTS OF FAMILY LAW II R.F.L. (4th) MacGyver v. Richards Abella l.A. 443

lway from the French immersion school system the mother had~hosen for her; the father's financial situation; and the child's age:

If we were dealing here with millionaires that could fly back andfonh across the country whenever they felt like it, no problem.Maybe in the future, Mr. MacGyver would have sufficient funds,once he's finished his studies and got himself a job, to do that, be­cause he's going to have to pay suppon then, too, and he's going tohave to take care of access. And maybe Mr. White and CathyRichards will also be able to contribute more in terms of access.

. . . This is a very young child. This is the time in her life that she cangrow into a relationship with the access parent. My decision mightbe entirely different if I was dealing with an older child. But that'snot the age group I am dealing with. I mention the necessity factor,because it is mentioned in some of the cases and we have to look atthat as well. And I do consider that.

\ccordingly, the trial judge concluded [emphasis added]:

It's not necessary to move the child; for example, we're dealing nowwith a four-year period when Mr. White is to be in Tacoma,Washington. There are a lot of other situations where parents are nottogether because one must go to school, one must do something else;one gets postings overseas perhaps where families cannot follow. It'snot the best situation, I agree. It's not. But it's not the best situationfor the mother. It is the best situation for the child.

The mother's evidence at trial was that she would not move tovashington without her child. According to Ron White's command­Ig officer, a request to change his posting from Tacoma, Washington'ould be resisted by his employers, and have "serious careernplications," including the possibility of being released from thelilitary and losing his pension. To date, the relationship between!hite and the mother is ongoing, but there has been no marriage.

On appeal, Justice Bolan disagree with the trial judge's conclu­on that the child be required to remain in North Bay. He stated [at4J that:

The Appellant has an opponunity to make a new life for herselfby entering into a stable relationship through marriage with CorporalWhite. However, the child goes hand-in-hand with the Appellant andwhat is good for the mother is good for the child. It's in the bestinterest of the child that she be with her mother. The mother's owninterests and happiness cannot be ignored in determining the bestinterest of the child.

I am mindful of the effect which moving from Nonh Bay willhave on the Respondent's relationship with the child. However, it is

in the child's best interest that she continue to reside with theAppellant.

23 This case does not tum on findings of fact or credibility; accord-ingly the test is whether the proper legal principles have been applied.(Young v. Young (1993), 108 D.L.R. (4th) 193 (S.c.c.) at 258-259,per L'Heureux-Dube J.).

24 The evidence in t.his case clearly supported the trial judge's con-clusion that it was in the child's best interests that the mother havesole custody. It also supported her conclusion that the father had awann relationship with his daughter and that both he and the childhoped it would continue.

25 But it is, in my view, a quantum leap from the observation that achild has a good relationship with a non-custodial parent to the con­clusion that the preservation of this relationship is the determinativefactor in deciding what is in the child's best interests. In a disputeover mobility, the certainty of a good relationship between the parentwith access and the child is known. The decision to move, on theother hand, contains uncertainty. But this does not mean that it willnot be best for the child.

26 Both judges in this case relied on "the best interests of thechild" in coming to diametrically opposite conclusions about how toachieve that result. Both acknowledged the factors they were requiredby statute to consider, including the child's relationship and ties toeach parent, each parent's plans for the child's care, the likely stabilityof the proposed family units, the child's views, and expert psychologi­cal assessment. Having acknowledged the relevance of each of thesefactors, and having applied them to the same, undisputed facts, thetwo judges disagreed about the potential impact of those factors andfacts on the child.

27 Clearly, there is an inherent indeterminacy and elasticity to the"best interests" test which makes it more useful as legal aspirationthan as legal analysis. It can be no more than an informed opinionmade at a moment in the life of a child about what seems likely toprove to be in that child's best interests. Deciding what is in a child'sbest interests means deciding what, objectively, appears most likely inthe circumstances to be conducive to the kind of environment inwhich a particular child has the best opportunity for receiving theneeded care and attention. Because there are stages to childhood,what is in a child's best interests may vary from child to child, fromyear to year, and possibly from month to month. This unavoidablefluidity makes it important to attempt to minimize the prospects forstress and instability.

28 The "best interests" test has to be understood in its context: itnever arises when two parents live together, or agree to a decisionabout the child's care. Absent the kind of neglect which triggers child

444 REPORTS OF FAMILY LAW II R.F.L. (4th) MacGyver v. Richards Abella J.A. 445

welfare legislation, parents are largely free to make whatever deci­sions they feel are best for their children. Parents who separate butcan agree as to the child's care, are subject to no outside scrutiny ofwhat they determine to be in the child's best interests. We generallyrespect a family's right to make decisions about its own children, andacknowledge, moreover, that at any given moment, it is difficult tosay that anyone of those decisions will not prove ultimately to be inthe child's best interests. In other words, the only time courtsscrutinize whether parental conduct is conducive to a child's best in­terests is when the parents are involved in the kind of fractious situa­lion that is probably, in the inevitability of its stress and pain and am­biguity, least conducive to the child's or anyone else's best interests.

Deciding what is best for a child is uniquely delicate. The judgein a custody case is called upon to prognosticate about a child's future,and to speculate about which parenting proposal will tum out to bebest for a child. Judges are left to do their best with the evidence, onthe understanding that deciding what is best for a child is a judgmentthe accuracy of which may be unknowable until later events prove _or disprove - its wisdom.

The speculative nature of the task clearly cannot absolve judgesfrom responsibility for exercising their judgment about what, accord­ing to the evidence, augurs best at that point for the balance of thechildhood. It can, however, and should, in deciding the incidents ofcustody, give pause about the extent to which judges interpose them­selves between the child and the parent responsible for exercising, ona daily basis, the kind ofjudgment a judge is called upon to make onlyonce. The parent, not the judge, will be left to live with the daily.:onsequences of caring for the child within the limits of that one judi­.:ial pronouncement.

This argues, it seems to me, for particular sensitivity and aiJreSumptive deference to the needs of the responsible custodial parent.vho, in the final analysis, lives the reality, not the speculation, oflecisions dealing with the incidents of custody. The judicial perspec­ive should acknowledge the overwhelmingly relentless nature of the~ustodial responsibility, and respect its day-to-day demands.

More importantly, that perspective should incorporate an em­lhasis on recovery, that is, an approach that respects the rehabilitativeights and needs of every adult and child recovering from the dissolu­ion of a former family. It is likely that no one is going to be able tolave every wish or need accommodated, but there should at least beIn emphasis on eliminating as much disadvantage for everyone as theircumstances reasonably permit, consistent with facilitating the pos­ibility that every member of the former family can get on with his orler life.

33 In this facilitative, rehabilitative model, the custodial parentmust be understood as bearing a disproportionate amount of respon­sibility. The reality and constancy of that responsibility cannot besaid to be the same as the responsibilities imposed on the parent whoexercises access and sees the child intermittently. During those daysor hours when parents without custody are not with their child, theyare largely free to conduct their lives in any way they choose. Thesame cannot be said for parents with custody, most of whose decisionsand choices are restricted by their role as the only adult legallyresponsible for the child.

34 Custody is an enormous undertaking which ought to bepreeminently recognized by the courts in deciding disputed issues in­cidental to that custody, including mobility. The right or wish to see achild every weekend or two may be of genuine benefit to a child; butit cannot begin to approach the benefit to a child of someone whotakes care of him or her every day. The scales used to weigh a child'sbest interests are not evenly balanced between two parents when oneis an occasional and the other a constant presence. They are both.usually, beneficial. But, prima facie, one is demonstrably morebeneficial than the other. As La Forest J. stated in Thomson v.Thomson (1994), 173 N.R. 83 (S.c.c.), at p. 126:

The right of access is. of course, important but ... it was not intendedto be given the same level of protection ... as custody.

35 In deciding what restrictions, if any, should be placed on aparent with custody, courts should be wary about interfering with thatparent's capacity to decide, daily, what is best for the child. That isthe very responsibility a custody order imposes on a parent, and itobliges - and entitles - the parent to exercise judgments which rangefrom the trivial to the dramatic. Those judgments may includewhether to change neighbourhoods, or provinces, or partners. or jobs.or friends, or schools, or religions. Each of those significant judg­ments may affect the child in some way, but that does not mean thatthe court has the right to prevent the change.

36 The inevitable genesis of a court having to make a decision isbecause of some stress and instability. To minimize future stresses. asopposed to more utopian and less realistic objectives, the court shouldbe overwhelmingly respectful of the decision-making capacity of theperson in whom the court or the other parent has entrusted primaryresponsibility for the child. We cannot design a system which shieldsthe non-custodial parent from any change in the custodial parent's lifewhich may affect the exercise of access. The emphasis should be.rather, on deferring to the decision-making responsibilities of the cus­todial parent, unless there is substantial evidence that those decisionsimpair the child's, not the access parent's, long-term ·--"''l-being.

446 REPORTS OF FAMILY LAW II R.F.L. (4th) MacGyver v. Richards Abella J.A. 447

37 We must also forcefully acknowledge that the custodial parent'sbest interests are inextricably tied to those of the child. The youngchild is almost totally dependent on that parent, not on the parent seenduring visits. While it would always be preferable to attempt to find asolution which protects the child's relationship with both parents, thisideal is simply not always possible. It is practically inevitable, whentwo parents no longer live together, that the child's relationship witheach will be different. This means that the child, and each of itsparents, must adjust to the new realities. The adjustments may bepainful, including the adjustment of a parent seeing a child less oftenthan anticipated. However painful, that parent's desires cannot beparamount.

J8 The child's best interests must be assessed not from theperspective of the parent seeking to preserve access, but from that ofthe child entitled to the best environment possible. It is a mistake tolook down at the child as a prize to be distributed, rather than from thechild up to the parent as an adult to be accountable. This by no meanseliminates the adult's wishes from the equation; it means that thosewishes cannot always be accommodated. It is the child's right to see aparent with whom she does not live, rather than the parent's right toinsist on access to that child. That access, its duration, and quality, areregulated according to what is best for the child, rather than what isbest for the parent seeking access.

19 That is not a new jurisprudential proposition and has been con-sistantly confirmed by courts when deciding whether to restrict themobility of a custodial parent (Carter v. Brooks (1990), 2 O.R. (2d)321 (C.A.); Wright v. Wright (1973), I O.R. (2d) 337, 12 R.F.L. 200,40 D.L.R. (3d) 321 (C.A.); Wickham v. Wickham (1983), 35 R.F.L.(2d) 448 (Ont. C.A.); Landry v. Lavers (1985), 50 O.R. (2d) 415, 45R.F.L. (2d) 235, 17 D.L.R. (4th) 190, to O.A.C. 244 (C.A.); and Fieldv. Field (1978),6 R.F.L. (2d) 278 (Ont. H.C.). See also J.G. McLeod,Annotation to Carter v. Brooks (1990), 30 R.F.L. (3d) 53 at 54-55).But it bears reinforcing in an economic climate that sees parents seek­ing to improve financial prospects, and a psychological environmentthat sees parents seeking to recuperate and establish new relationshipsor careers.

iO Each of these environmental realities affects the children inthem. But once the parties themselves or a court decide that a par­ticular person is primarily responsible for protecting a child andpromoting the environment that best facilitates adjustments to change,that responsible parent should largely be free to carry on with parentaldecisions and duties. Unfortunately, this may affect the parent withaccess, but in the long run it may not affect the child. And it is thechild, after all, who is at the centre of the exercise.

41 When, therefore, a court has been asked to decide what is in thechild's best interests, and a choice must be made between the respon­sible wishes and needs of the parent with custody and the parent withaccess, it seems to me manifestly unfair to treat these wishes andneeds as being on an equal footing. When one adds to this the dimen­sion that a court's decision ought to favour the possibility that theformer partners can get on with their lives and their responsibilities,one reaches the admittedly difficult conclusion that a parent with cus­tody, acting responsibly, should not be prevented from leaving a juris­diction because the move would interfere with access by the otherparent with the child, even if the relationship between the child andthe access parent is a good one.

42 To conclude otherwise may render custody a unilaterally puni-tive order. No court could - or would - prevent a parent with accessfrom moving anywhere or at any time he or she chose. LeeMacGyver could, for example, anytime he chose, and for whateverreason he chose, decide to leave North Bay for anywhere he chose,whether or not a court deemed the move "necessary." Whether or notthe motivation was benign, and whether or not the loss of the visitswas harmful to the child, it is inconceivable that a court would insistthat the parent with access remain in the jurisdiction for the sake ofthe child's best interests. To do so would be an unwarranted intrusioninto an entirely personal decision.

43 I have difficulty understanding why, then, courts should not feelequally constrained in interfering with the right of a custodial parentto decide where to live. In my view, it is not for a court to pass judg­ment on whether a move is "necessary" for the custodial parent, anymore than it would be for a court to pass judgment on a similar deci­sion by the parent with access. It is hard enough for members of aformer family to adjust to separation without courts telling themwhere they should live.

44 In the case before us, the trial judge put the mother in theSolomonic position of having to choose between her child and hermarriage. The mother made it clear that she would never leave NorthBay without her child, and the trial judge made it clear that the mothershould continue to have sole custody. By deciding that the childshould remain in North Bay, the trial judge disregarded the recom­mendations of an expert assessment that this new family would be inthe child's best interests, effectively denied the mother the opportunityto carry on with her life, and deprived the child of the opportunity tolive in a new family unit. Instead, the trial judge tied the futureprospects of the mother and child to the visiting parent's wishes andconvenience.

45 Her analysis essentially was that Vanessa was in familiar sur-roundings and had a good relationship with her father. This, it seems

448 REPORTS OF FAMILY LAW II R.F.L. (4th) MacGyver v. RichardsLabrosse l.A. 449

to me, is the situation in most cases and is therefore not particularlyhelpful in deciding whether it is in this particular child's best intereststhat she be prevented from leaving North Bay. In suggesting that themove was not "necessary," the trial judge was imposing anidiosyncratic, inappropriate and arbitrary test. The test is not whethera judge feels subjectively that a move is "necessary," but whetherthere is any reason to conclude that the move would not be in thechild's best interests.

s The effect of the trial judge's interpretation is that a custodialparent without the financial resources to provide access can never, ab­sent an overwhelming justification, move with a very young child ifthe effect of that move is to interfere with an access relationship. It isan analysis that allows mobility only to those parents who have themoney or the maturity to cope with post-separation realities.

7 I agree with Justice Bolan that Vanessa's long-term best inter-ests are tied to those of the parent responsible for her day-to-day care.There is no reason why her father's visiting rights should be permittedto create an insunnountable wall around North Bay for her mother.Custodial parents are expected to conduct their lives in conformitywith the needs of their children, not with those of the parent with ac­cess. Where, as here, the mother is chained to the anchor of accessand she, unlike the father, is thereby prevented from choosing her fu­ture, an error has clearly been made about the parent to whom thechild's best interests are predominantly attached. Without denying themutual affection between Lee MacGyver and Vanessa, it cannot besaid, based on the evidence, that the accommodation of his wish to seeher every two weekends is more conducive to the child's best intereststhan her mother's right to get on with her life and establish a newhome for the child. .

Custody and access represent symmetrical relationships with achild, but not identical ones. The trial judge erred in giving priority tothe imperatives of the access relationship over those of the custodialone, by requiring the child, and therefore the mother, to remain inNorth Bay. There was no evidence that a move would impair thechild's best interests, only that it would impair access. The two arenot synonymous interests, and "access" must defer to "best interests"rather than the other way around. Bolan J. was therefore correct inidentifying the inconsistency between the trial judge's conclusion thatit was in the child's best interests to remain with her mother and herdecision to deprive the mother of the right to decide where to live withher child. Accordingly, I agree with his decision to delete the require­ment that the child remain in North Bay.

I would dismiss the appeal but, in all the circumstances, I do notthink that this is an appropriate case for costs.

..--.-

50 LABROSSE J.A.: - I have read the reasons of my colleague,Abella J.A., and while I fully agree with her disposition of this appeal,I wish to briefly state in my own reasons.

5\ Having in mind the scope of appellate review in this case, it ismy view that the decision of the trial judge was clearly wrong in itsresults.

52 The trial judge made mention of the factors that were con-sidered in Carter v. Brooks (1990), 2 O.R. (3d) 321 (C.A.) but shefailed to give effect to them in light of the best interest of the child.Proper consideration was not given to the nature of the relationshipbetween the child and the mother who is the custodial parent and hasalways been the primary care giver of the child. Neither was properconsideration given to the purpose of the change of residence. Thereis no doubt that the move is not intended to frustrate access. It is be­ing made in good faith. The mother wishes to marry Mr. White andfonn with him a stable family relationship.

53 I agree with Bolan J. that the mother's own interest and hap-piness, on the facts of this case, are of great importance in detenniningthe best interest of the child.

54 The trial judge gave far too much importance to the nature ofthe relationship between the child and her father and to the limitedaccess exercised by the father. This relationship, to some extent, canbe maintained on the basis of the access provisions as agreed by theparties or as specified by the court.

55 As stated in Carter v. Brooks, the sole governing principle is thebest interest of the child and it does not assist in applying this prin­ciple to rely upon a mechanical proposition such as "the right toremove" the child. The best interest of the child clearly dictates thatthe child be pennitted to move with her mother.

56 I would dismiss the appeal.

Appeal dismissed.

)

U.F.C.958

BETWEEN:

D. MCIVER

G. CARSON

JUDGMENT

of A.D. 1988J.C. S.

IN THE COURT OF QUEEN'S BENCH

(FAMILY LAW DIVISION)

JUDICIAL CENTRE OF SASKATOON

TWILA FAYE BROTHWELL (YACKEL)

PETITIONER

- and -

DOUGLAS JAMES BROTHWELL

RESPONDENT

- for the petitioner

- for the respondent

CARTER J.

DATE: JUNE 29, 1995

This is an application by Twila Faye Brothwell (mother)

for an order varying the judgment of Dickson J. of the 5th of

January 1990, in which he gave judgment for divorce and joint

custody to the parents of two boys Matthew, born April 22, 1984 and

Luke, born June 3, 1986~ No other corollary relief was set out in

the divorce judgment. The father is a dentist practicing in

2

Melfort, and was so at the time of the divorce. Mother was thenwithout employment.

History of the Proceedings in F.L.D.:

The parties married August 23, 1980 and separated inSeptember 1988. They entered into a separation agreement inDecember of 1988 in which they agreed to joint custody, residencewith the father and generous access to the mother. That agreementcontained a provision that

It shall be a j oint decision of thehusband and wife to remove the childrenfrom the Province of Saskatchewan for anyreason other than a short vacation.

In July, 1990, the mother commenced an application tovary the divorce judgment by granting mother sole custody of theboys, or joint custody with principal residence with mother. Shebased this application upon the grounds that she was being deniedaccess, or was having difficulty with access. A pre-trial wasordered on the issue. the pre~trial was heard in November of 1990and as no agreement was reached a custody investigation report wasordered.

The report indicates that the father married June 1990,Sharon Poncelet, mother of 3 children, and those children movedinto the father's home with his own 2 boys. Mother married againMay 27, 1990. Her husband is Ivan Yackel. The report was filed

with the court July 31, 1991 and recommended that the joint custodywith principal residence with father continue. The report says

that both

Dr. Brothwell and Mrs. Yackel possesssuperior parenting skills and theirability to adequately parent the children

)

3

is beyond reproach. The physical,psychological, social and economic needsof the children are being met by Dr. andMrs. Brothwell and by Mr. and Mrs. Yackelas non-custodial parents.

The investigator, Heather Warwick, B.S.W. recommended

that the joint custody arrangement remain unchanged and she gave

her reasons:

This assessment reveals that the parties,prior to their separation in 1988, led analmost idyllic life in a most favourableand supportive community. (I presume shespeaks of Melfort and district.) Sincethat time, the children have remained inthe marital home in that community, havemaintained close contact with theextended family, have establishedfriendships at school and at play andhave begun to take part in socialactivities. The alternative beingrequested is to have the boys move to acompletely new community, away fromextended family and friends. I am of theopinion that the request is not in thebest interest of the children. (Themother then lived in Regina.)

In his affidavit of the 30th of July, 1990 filed in

opposition to the mother's application for a change in the divorce

judgment which would give her sole· custody or joint custody with

principal residence with her, the father has this to say:

That both children have been in myexclusive care since the separationexcept for periods of access by thepetitioner. Both children have spenttheir entire life in Melfort. both setsof grandparents live at Melfort and thechildren are completely established inMelfort in the terms of horne, family andfriends. Additionally the children havetwo sets of aunts and uncles and a number

4

ot cousins that they are very close to inMelfort ....

and in another paragraph:

That I am deeply attached and devoted tomy children and in my view it would bedevastating to them to uproot them fromtheir lifelong home, family and friends.

After the custody/access report was filed, the mother

took no further proceedings and matters have remained as

recommended by Ms. Warwick: j oint custody, principal residence was

father and generous access to mother.

The application before me by the mother for variation

of the corollary relief set out in the divorce judgment is as

follows: .

a) an order that the applicant (mother)have sole custody of the children Matthewand Luke. Alternatively:

b) an order providing that the primaryresidence of the children be with theapplicant mother and

c) an order preventing the respondentfather from removing the children oreither of them from the Province ofSaskatchewan.

The affidavit material filed on this application shows

that the father has informed the mother that he is moving to

Aurora, Ontario, at the beginning of July, 1995 and intends to

enroll in a course at the dental college in Toronto, which will

enable him to teach Public Health Dentistry. His reason for this

move, he states in his affidavit, is that he has developed a

condition in his hand (or hands) which causes them to shake and he

cannot continue working as a dentist. He is at present on a

5

disability pension of $10,000.00 per month. He says that hisincome from disability insurance is secure whether he works or not,at this stage, but he would prefer not to rely on disabilityinsurance. He has located and arranged to rent a large house inAurora and intends to commute from Aurora to Toronto 4 days a weekto take the courses at the dental college there. The course is fortwo or possibly three years. If he wishes to get a Masters Degreeit will be three years.

The applicant mother says that this would be a change

in the circumstances of the children of great importance to theboys, and warrants an application for variation. She says it wouldnot be in the best interests of the boys to be uprooted from theirhorne in Melfort where they have lived in their father's house sincethe parties separated, and mother has had generous access duringthat time, nor from the Province of Saskatchewan.

Father says in his affidavit sworn May 15, 1995 that:

The children will have all thetraditional sports and recreationalopportunities available to them in Aurorathat they have in Melfort only with agreater variety and greateropportunities. The area is a virtualparadise in terms of recreation areas,lakes, etc.

Mother in her affidavit says that the father will becommuting between Aurora and Toronto 4 days a week and will seemuch less of the boys than he did when they lived in Melfort.Father says his present wife does not work outside the horne andwill be able to care for his boys and her boys, while the applicantmother works outside the home and will not be looking after them.

The applicant says if she gets sole custody she will not workoutside the home and will remain in her home with the children.

6

The access which the mother has enjoyed since December1988 and perhaps before that, has been generous. Mother and herhusband are now living on an acreage near the town of MacRorie,some 200 kilometres from Melfort. They have lived there since1993, having moved there from Regina. The mother picks up anddelivers the boys every other weekend from Friday after school toSunday evenings. Friends and neighbours from MacRorie have filedaffidavits attesting to the ability of the mother and her husbandto care for the boys when they are with her, and the pleasure theboys have in being with her, and how they have fitted into theneighbourhood.

In addition to the weekend access the mother has thefollowing access:

*six weeks during the summer school vacation

*the entire Christmas Holiday except forChristmas Eve and Day

*the entire Easter break of about 10 days

If the father should move to Ontario with the boys hehas offered two months in the summer; all the Easter and Christmasbreaks and the spring break. He says he will pay for the cost offlying the boys to Saskatchewan and return for all the accessexcept the Easter and mid-term break. (I am assuming the fathermeant airplane expenses, but he does not say so.)

The mother provided me with a comprehensive brief onthe question of applications for variation of access and custody,inclUding cases on the burden of proof, the question of the changedcircumstances of the children and the best interest of thechildren. The application is made under section 17 of the Divorce~, R.S.C. 1985, c.3 (2nd SUpp.) which reads in part as follows:

7

17(1) A court of competent jurisdictionmay make an order varying, 'rescinding orsuspending, prospectively orretroactively ...

(b) A custody order or any provisionthereof on application by either of orboth former spouses or by any otherperson.

(5) Before the court makes a variationorder in respect of a custody order, thecourt shall satisfy itself that there hasbeen a change in the condition, means,needs or other circumstances of the childof the marriage occurring since themaking of the custody order or the lastvariation order made in respect of thatorder, as the case may be, and in makingthe variation order, the court shall takeinto consideration only the bestinterests of the child as determined byreference to that change.

The leading case on thecircumstances of the children is Talbot v.

251; (1990) R.F.L,. (3d) 415, Sask. C.A.

question of changedHenry (1990) 5 W.W.R.

In that case, Bayda, J.A. set out the procedure thejudge must follow in variation applications. First the judge mustdetermine if there are any changes in the circumstances of thechildren or I presume as in this case if there will be any suchchanges if the father moves to Ontario. If there are nosignificant changes the judge cannot proceed to consider whetherthe proposed change is in the best interests of the children. Imust therefore compare the circumstances of the children when theDivorce Judgment was made on January 5, 1990 which gave jointcustody of the boys to the parents, with no other corollary reliefset out in the judgment to the circumstances now. The boys were atthat time living in the home of thee father, and mother had generousaccess as set out in the terms of their agreement of December 1988.That agreement included the term providing for the consent of both

8

parents if the children were to be removed from Saskatchewan exceptfor short holidays. Father's home has been the principal residencesince then and mother has had the access set out above.

The circumstances now are that the father intends to,and if the mother's application is not granted, will take the boysto Ontario for a period of two and possibly three years. I findthat this is a material and significant change in the circumstancesof the children if the move is made. I therefore turn to thequestion of what would be in the best interests of the children.There are a great many cases arising out of the wishes of thecustodial parent to leave the town, city or country where thecustodial parent lives, taking the children with him/her, and thenon-custodial parent wishes to prevent this from happening. InHeintz v, Heintz (1992) Sask. Decisions 1525-04 (Q.B.) the parentsseparated after 10 years of marriage, there was one child age 6.The parents entered into a separation agreement providing thatmother would have custody and father access and the agreement alsoprovided that the mother was to give 45 days notice of any changeof address. Mother wished to move, father applied to the court foran order barring her from moving or giving custody to the father orincreased access. The mother was seeking better employment andwished to follow her new conj oint. I refused to place therestriction sought upon the mother, but increased the access to thefather. I pointed out that in more recent years there has been anincreasing tendency to allow the custodial parent to leave thejurisdiction or pursue a stable relationship. In earlier cases inthe 1970's (and before that) and the 1980's, there were a greatmany cases preventing the custodial parent (usually but not always

the mother) from moving even from one city to another in the sameprovince, and from province to province or country to country. Thecustodial parent was (usually but not always the mother) and theparent with access usually, but not always the father. The courtsmade the orders preventing the moves upon the grounds that the

9

'I custodial parent would not be able to exercise the access fixed by

the court or by agreement.

An example of the more recent jurisprudence in such

cases is Levesque v. Lapointe 44 R.F.L. (3d) 316 (B.C.C.A.). The

parents had 2 children, born in 1982 and 1984. They moved from

Quebec to British Columbia. They separated in 1985 and in 1987

entered into a separation agreement providing for joint custody

with the children living with the mother during the school year and

with the father during the summer and 2 out of 3 weekends. The

agreement provided that in the event the parents contemplated a

long term move outside Vancouver, the city where they were living,

the custodial arrangements could be reviewed. Mother remarried and

wished to move with her new husband to Alberta where they arranged

accommodation. The father did not consent to this move, and mother

applied for permission to do so. The chamber judge refused and the

matter went to the Supreme Court of British Columbia. The children

were then 8 1/2 and 10 1/2. There was no clause in the agreement

of 1987 that either parent could not remove the children from

British Columbia as set out above but the parents clearly

contemplated that there might be a request for such removal by one

parent or the other. The appeal court pointed out that the

mother's application was not brought as an application for

variation of custody but as an application under the Divorce Act

section 16(6) which provides:

The court may make an order under thissection for a definite or indefiniteperiod or until the happening of aspecified event and may impose such otherterms, conditions or restrictions inconnection therewith as it thinks fit andjust.

The British Columbia Court of appeal said that from

section 16(6) (page 325):

10

it appears that a court ·of competentjurisdiction could impose residencerestrictions as an incidence of custody,on the custodial parent, but that is not,of course what the appellant (mother)sought in her application. Instead theapplication appears to have proceeded inthe court below as if the appellant wereasking to be relieved of a court imposedrestriction concerning residence.

Counsel for the respondent, as part ofhis argument, submitted that it wasimplicit in the joint custody ordergranted at the time of the divorce thatthe parties would remain in the samelocality , because otherwise "co­parenting" was a practical impossibility.We seriously question the assumption thatan order for joint custody, whichcontains no other term, condition orrestriction, can be taken to impose arequirement that the parents live inclose proximity to one another.

The judgment goes on to say that it was conceded that

the mother had been the children's primary care giver, the

principal residence being with her in the school term and the

father having the care of the children during the summer holidays.

They found that the mother's wish to move to Calgary was bona fide

and not motivated by a wish to thwart father's access. The court

quotes Carter v. Brooks (1990) 30 R.F.L. (3d) 53 Onto C.A. Morden

A.C.J.O.:

In most cases, I would think it is animportant factor to take into account, infavour of the custodial parent, that theexisting custody decision (by order oragreement) shows that from a day-to-daypoint of view the best interests of thechild lie with the child's being with thecustodial parent. Added to this, it isreasonable to think that an incident ofcustody includes the determination by the

11

custodial parent of where the parent andchild shall live ....

and

The nature of the relationship betweenthe child and the access parent willalways be of importance. The closer therelationship and the more dependent thechild is on it for his or her emotionalwell being and development, the morelikely an injury resulting from theproposed move will be.

The reason for the move is important. Ifthe motive is simply to frustrate access,then it would not be expected that acourt would decide in favour of it. Onthe other hand, if the move is necessary,for example for the maintenance ofemploYment this would count in favour ofthe move.

In Oldfield v. Oldfield (1991) 33 R.F.L. (3d) 235 Blair

J. of the Ontario Court (General Division) set out a list of

factors relevant in determining the best interests of the child as

outlined in Carter v. Brooks (supra). The list is a follows:

(1) The views 0 f the custodial parent(which he said should generally be paid areasonable measure of respect);

(2) The fact that existing custodialarrangements showed that from a day-to­day point of view the best interests of achild lie with the child's being with thecustodial parent;

(3) Determination by the custodialparent where parent and child will live,as an "incidence of custody";

(4) New family unit, if it exists, andhow the well-being of that family unitbears on the best interests of the child;

(5) The nature of the relationshipbetween the child and the access parent

12

(the closer the relationship and the moredependent the child is on it for hisemotional well-being and development, themore likely an inj ury will result fromthe move) ;

(6) The reasons for the move;

(7) The distance of the move;

(8) The child's views; and

(9) The Divorce Act. R.S.C. 1985 (2ndSupplement) C.3, principle that a child"should have as much contact with eachspouse as in consistent with the bestinterests of the child".

Among the Saskatchewan cases on the point are:

Wells v. Wells (1984) 38 R.F.L. (2nd) 405. In thatcase the parties moved from Ontario to Saskatoon where the fatherwas employed with the Potash Corporation of Saskatchewan commencingSeptember 1981. They married in November of 1981, the child wasborn in May of 1982 and in July of 1982 mother moved with the childout of the matrimonial home and commenced proceedings for custodyand maintenance and moved for interim custody and maintenance. OnAugust 4th after hearing the application in chambers on affidavitevidence, I gave inteirm custody to the maother. The trial on theissue of divorce, custody and maintenance was heard by Gagne J.Father had counterclaimed for a decree of nullity or divorce andcustody. Gagne J. granted the divorce and awarded custody to thefather and access to the mother. Mother appealed and the court ofAppeal reversed Gagne J.'s decision but added a provision thatneither party could remove the child from the jurisdiction withoutthe consent of the other or a court order. This order was madeApril 1983. Mother then moved for an order removing therestriction and for the reasons set out in the judgment her

13

application was granted. On appeal to the Court of Appeal, this

decision was upheld.

Adie v. Adie 89 Sask. R. 183. Mother allowed to move

to New Zealand with a 12 year old son in her custody for a period

of one year.

Grant v. Brotzel 115 Sask. R. 96, the mother permitted

to move to British Columbia iwth the child in her custody.

Menzies v. Menzies 107 Sask. R. 19 - mother permitted

to move back to her native Eng.land with an 8 and a 4 year old

child, where mother was lonely and unhappy and had made few friends

in Saskatoon and father had separated from ehr and was living with

another woman.

Janette Rita Gordon (formerly Goertz) v. Robin James

Goertz, Gagne J., U.F.C. 1035 OF 1990, unreported oral judgment.

In that case, after a lengthy trial on a number of amtters,

including custody, I awarded custody to the mother as the cheif

care giver to the child whilst the parties lived together and after

they separated. The father was given structured but generous

access. The petitioner mother is a dentist, and after the trial

and an appeal to the Court of Appeal where in the decisionwas

upheld, mother then applied to take the child to Australie where

she has been accepted at a University to qualify as an

orthodontist. She says she had applied throughout Canada and othe

rplaces and this was the one place she was accepted. Father

opposed. The matter was heard in Chambers and Gagne J. ordered

that mother could move to Australia with the child, Samantha, and

the respondent would have liberal and generous access to his

daughter in Australia on one month's notice and provisions for

possible access in Hawaii and ordered that the hcild not be removed

from Australia by the mother. On appeal, the Court of Appeal

14

upheld this order. I am informed that the father has got leave toappeal to the Supremem Court of Canada on this matter.

The Levesque (supra) case gave consideration to mostof the relevant factors set out above. There is no dispute in thatcase before me that the father had, together of course, with hispresent wife, the day to day care of the children from their earlyyears onward, except when they were exercising the access to themother. I quoted the father's remarks in his 1990 affidavit aboutwhat a devastating thing it would be if the boys were uprooted fromtheir home in Melfort and all their extended family, to make theirhome with their mother in Regina. Now, five years later it isaccordihg to father no longer devastating to uproot the boys but intheir best interests to move them with him to "a virtual paradise"in Aurora. The mother now says that it would not be in the bestinterests of the boys to take them out of Saskatchewan, where theirroots are and where their extended family lives, and of coursewhere mother and her husband live. There is no suggestion that theboys are not well cared for in either home, and that they areunhappy with either parent or step-parent.

The oldest boy is 11 and his brother is 9. I feltanxious about how the boys themselves felt about the move, which ofcourse they knew about. Suffice it to say that they were notwildly enthusiastic about the move, nor were they upset at theprospect but were mildly interested in the proposed move. In themeantime they told me that they were shortly going to fly to NewOrleans to be met by their mother and their step-father (as theycalled their mother's husband) and she would take them toMississippi where they would spend the summer whilst their step­

father took some courses.

Father's reasons for moving to Ontario are not

unreasonable if the course he wishes to take is not offered at theDental College of the University of Saskatchewan. Father has not

15

') tiled any medical certificate about his condition, nor has he inhis affidavit said whether the course is available in the province.However, no obj ection was taken by the applicant to father'saffidavit on that account and I presume this was not an issue. Idid not form the opinion that his move was to thwart his ex-wife'saccess, since there does not seem to be any dispute about thissince 1990, and indeed friends and neighbours from MacRorie filedaffidavits stating how much the boys enjoyed their visits with

their mother and how they fitted in with the people of that townand environs, and he has, in addition offered generous access.

In Korpesho v. Korpesho (1982) 31 R.F.L. (2d) 440,Monnin J.A. said at page 451:

Society permits divorce and permits oreven encourages remarriages. Once asecond stable union has been establishedthe new spouses or the new family unitmust be allowed to live a normal familylife.

In a country as vast as ours, withvarious economic regions, people may haveto move from one province toanother .... in search of employment or tobetter one's type of employment.

Because of the reasons given above: father being thelong-time custodial parent, the reasons for the proposed move, thegenerous access offered I dismiss the application of the mother.

The father will therefore be allowed to remove the boys

from the Province of Saskatchewan to the Province of Ontario forthe purpose of taking the course offered by the University ofToronto. Mother will have access during the months of July andAugust, the entire Christmas holiday of two weeks startingChristmas 1995, the entire Easter holiday starting Easter of 1996,the entire mid-term break (usually in February). If the mother

16

wishes to have long weekend access at her expense with reasonablenotice to father she can arrange same. The costs of the travel toand from Saskatchewan will be borne by the father.

There will be no order as to costs.

Suit No. AI 95-30-02136

IN DIE COURT OF APPEAL W

Coram: Twaddle, Helper and I

BETWEEN:

,BRIAN LAPOINTE, ) I. I(

) for I.

(petitioner) Respondent, ))) J. A. Cooper and) S. L. Vovchuk) for the respondent

- and- )) Appeal heard and) decision pronounced:) Juoe 28t 1995)

GLORIA LAPOINTE, )) Written reasons:

(Respondent) Appellant. ) October 20, 1995

TWADDLE l.A.

This is one of those troublesome cases involving the proposed

relocation of children by one of two divorced parents. The trial judge

forbade the move. but this Court set aside his order at the conclusion of the

hearing. These are our reasons for doing so.

2

the facts

The parties (whom I will refer to as "the father" and

"the mother" respectively) grew up in Winnipeg. They met sometime

towards the end of 1980, or early in 1981, and began dating. Later in

1981, the mother moved to Edmonton. Alberta, where several of her

siblings resided with their families. She nonetheless maintained a s~ial

relationship with the father whom she saw on her annual visits to see her

parents in Winnipeg.

The mother returned to live in Winnipeg in 1984 to further her

relationship with the father. She moved in with him later that same year

and ma.:ried him early in 1989. They remained in Winnipeg, each initially

being employed outside the home.

The parties' two children were born in August, 1989J and

May, 1992, respectively. Starting with the birth of the first child, the

mother remained at home as a caregiver. The father took twelve weeks'

parental leave following the birth of the second child.

Some six months after the birth of the second child, the parties

separated, the father moving out of the matrimonial home. Arrangements

for the children were discussed. It was agreed that the children would

remain with their mother, subject to the father exercising access rights or,

as he prefers to caJl them, periods of care and control.

3

It is not clear from the record as to when the moth~r tirst

expressed a wish to move to Edmonton with the children, but it certainly is

clear that she did so before a formal separation agreement was entered into

in Aug"ust. 1993. That agreement provided, as far as the children's

custody and care was concerned, that the children should "remain in the

joint custody of the parties", with primary care and control CO the mother

and specified care and control to the father. It was also agreed, however,

that the mother should .. have ultimate decision-making power with respect

to issues involving the children. "

The times spe<:ified for the father's care and control involved a

ten-hour daytime "period each weekend, alternating between Saturday and

Sunday, a three-hour period each mid-week and a two or three day period

during the summer holidays. The agreement also allowed the mother to

take the children to Edmonton for a two-week period in the summer of

1993.

The possibility of the mother wishing to relocate was

specifically contemplated. The agreement required her to give three

months I notice to the father of her intention to do so. The parties agreed

that, in such event, if the father opposed the move, they would consider

consulting Family Conciliation Services. The father was to be free,

however, to apply to the court to resolve any such dispute.

Shortly after the separation agreement was signed, the mother

travelled to Edmonton with the children for a two-week holiday. While

there, she spent time with her three sisters, a brother and their families.

4

She considered the possibility of relocating close to them and obtained an

offer of employment as a secretary. As soon as she returned to Winnipeg,

she gave the father notice of her intention to relocate in Edmonton.

Tbe father responded to the notice by commencing legal

proceedings. He obtained an interim order, pursuant to provincial

legislation, prohibiting the removal of the children from Winnipeg. This

interim order was renewed, the court also ordering the children to remain

in the joint legal custody of the parties. A further interim order was

obtained extending the periods in which the father should have care and

control of the children. Instead of having the children in his care and

control for one day each weekend, the father was to have them in his care

and control for two days every alternative weekend, the younger child

returning to her mother overnight. The father was also Biven time with

them over the Christmas and spring-break holidays.

The divorce proceedings came on for hearing in June, 1994, at

the same time as the father's application for an order forbidding the

mother's proposed move with the children. A divorce judgment was

granted together with an order of joint custody. The joint custody order

was, however, qualified in the same way as the panies' agreement. It gave

primary care and control and ultimate decisionomalcing to the mother and

only specified care and control to the father. The care and control of the

father was provided for OD the basis of a two-week schedule. Durina the

first week, the father was to have the children for two days over the

weekend and on one weekday evening for three hours. During the second

week, the father was to have the children on two weekday evenings for a)

!S

similar period. Additionally, the father was to have the children for three

days during the summer of 1994.

The court also ordered the mother not to change the place of

residence of the children from the City of Winnipeg.

The trial judlment

The trial judge found as a fact that the mother was very

sincere in her wish to live ncar her three sisters, a brother and their

families. There was no suggestion that the move was motivated by a

desire to deny the father access. The trial judge also found the mother to

be willing to faciJitate long·distance access and the father to have the

means to exercise it.

On the other hand. the trial judge found the father to have "a

significant relationship" with his children and noted the difficulty of

maintaining this relationship on a long-distance basis.

The conflict between the mother's intended move and the

desirability of enabling the children to maintain a significant relationship

with their father was resolved by placing an onus OD the mother to justify

the move as being in the children's best interests. That such an onus was

placed on the mother can be seen in two passages from the judge's reasons.

The first is this:

6

The concern. as I indicated to counsel for Ms. Lapointe, were thereasons for moving. That was the only concern the court had. Onevery other matter the court had no problem at aU.

And the second is this:

I searched in vain for some special reason to pennit Ms. Lapointeto move to Alberta with the children.

In considering the best interests of the children, the judge

ignored the fact that the person to whom he was entrusting the care of the

children (Le. the mother) obviously had a different view as to what was in

their best interests. And he did not even allude to the possible effect on the

children of living with a parent who had been denied her choice of living in

the community she preferred, in the proximity of her siblings and in a

place where she had at least an offer of employment.

The law

The law in this area is far from settled. For the truth of this

statement, one need look no further than the two Ontario Court of Appeal

decisions in Cam, 1'. Brooks (1990), 30 R.F.L. (3d) S3 and MIICGy,er ,.

Richlll'ds (l99S), 22 O.R. (3d) 481. Despite attempts in the latter to

reconcile the two, the one is as different from the other as oil from water.

In light of the incompatibility of those two decisions, it would

perhaps be helpful to have a brief look at the right of a custodial parent -

7

or one with primary care and control and the ultimate decision-making

power with respect to a child - to change the residence of the child in his

or her charge from a historical perspective.

At common law t a father had more or less total power over

his legitimate children during their minority. This applied not only when

the parents lived together t but also if they separated. Then the father had

the exclusive right to custody which certainly included the ri2ht to

determine where the children should live.

The King v. De Manneville (1804), 5 East 221. 102 E.R.

1054 (K.B.) is a rather stark example of the historically insurmountable

legal position of the father. In that case, the child's mother had left her

husband, the child's father, because of his allegedly abusive behaviour

towards the mother. She took her suckling daughter with her. The father,

almost literally, snatched the child from her mother's breast.

Lord Ellenborough observed (at E.R., p. lOSS):

[H]e (the father) having a legal right to custody of his child, andnot having abused that right, is entitled to have it restored to him.

A father's virtualIy absolute right to custody was gradually

eroded during the nineteenth century. This was due partly to legislation,

such as the Infants' Custody Acts of 1839 and 1873 and the Matrimo"UII

Causes Act, 18S7, and partly to the emergence of the equitable principle

giving paramountcy to the interests of children.

8

Thus it came about that a separated mother could be awarded

custody of her children if their best interests 'warranted such an award.

This meant not only that courts had a discretion as to which parent should

be custodian, bu.t also that the parents could agree as to which of them

should have custody and as to the access entitlement of the other.

A father's almost exclusive right to custody was thus lost.

The incidents of that right, however, became vested in whichever parent

happened to have custody I whether by decree or agreement. One such

incident was the power to decide where the children should live.

Hunt ,. Runt (1884), 28 Ch. D. 606 (C.A.) was one of the

first cases to deal with the competing rights of one parent as custodian and

the other as an access parent. The case turned on the construction of a

deed of separation which gave the father custody of his children with -free

liberty of access· to the mother. The father, an army medical officer, was

posted to Egypt. He intended to take two of his children with him. The

mother sought to restrain the father from doing so on the ground that the

move would frustrate access. The court was unsympathetic. Fry L.J. said

(at p. 613):

The deed appears to me only to give the wife a right of access tothem where they happen to be, and to hold that it obliges thehusband to keep the children in such a place that she canconveniently have access to them, would create formidabledifficulties, for how could it be determined what was the Umit tolite places to which the husband might take them.

9

As viewed by Fry L.I. t the' only possible limitation on the

fatber's right to move the children's residence was a need for the father to

8how good faith. That view is found in the following sentence:

The case of his taking the children away for the purpose ofpreventing the wife from having access to them docs not arise.

Bowen LJ. went further. He said:

Dr. Hunt is not to do anything unreasonably which would preventher from seeing them.

He held, however, that there was nothing unreasonable in the father taldn&

his two children with him to Egypt where he was to perform. his duties.

Hunt v. Hunt was followed not only in En&land. but also in

Canada. The right of the custodial parent (be that the father or the mother)

to move the children away from the access parent continued to be

recognized subject only to the kinds of limitation contemplated by Fry and

Bowen L.ll.: see Douglas v. Douglas, [1948] 1 W.W.R. 473

(Sask. K.B.), Lamond v. Lamond and Tappin, [1948] 1 W.W.R. 1087

(Sask. K.B.) and Beck v.Beck, [1950] 1 D.L.R. 492 (B.C.C.A.).

The case of Beck differed from Hunt v. HUllt in that the

father' $ custodial rights resulted from a court order rather than an

agreement. The facts were otherwise similar. The father wished to move

his children to California where he intended to settle with his new wife.

10

The mother, who had reasonable access rights, objected. Deliverin, the

judgment of the Court, Sidney Smith J.A. said (at p. 498):

It is apparent that transfer of the child to the new home mayinconvenience the mother's right of access. But the authoritiesshow that this consideration cannot prevail over the father's right tocustody, which involves the right to remove the child out of thejurisdiction.

The conflict between a custodial parentis right to decide where

the children should Jive and the access parentis right to see them was also

dealt with in Wright v. Wright (1973), 40 D.L.R. (3d) 321, this time by

the Ontario Court of Appeal. In that case, the mother had custody of the

children by virtue of a separation agreement which only afforded the father

"rea~onable access." The agreement also contained express provision

permitting the mother to IIreside at such place as she shall think fit."

Ten months after the execution of the agreement, the mother moved to

Calgary with the children. The husband stopped makin& support

payments. The husband argued that he had the right to discontinue support

because the wife, in taking the children to Calgary, had effectively

prevented access and had thus breached the terms of the agreement.

The court held that the wife had the ri~bt to move to Calgary

with the children. Evans I.A., dcliveriol the majority judgment,

summarized the applicable law tbus (at p. 324):

The applicabJe law may be summarized as follows: Absenting allconsideration of unreasonableness, which, in the circumstances ofthis case is not a factor, the parent who has custody of children has

11

the right to remove tho children without the pcnnis:don of the otherparent in the absence of some specific agreement to the contrary orin the absence of such specific terms with respect to access aswould clearly indicate that the parties must have intended that thechildren remain in close proximity if the specified right of accessprovided in the asreement was to be an effective right.

No reference was made to the best interests of the children,

but this was perhaps because the decision turned on an interpretation of the

parties I separation agreement. PresumablyJ they had agreed on what was

in the children's best interests.

Field )II Field (1978), 6 R.F.L. (2d) 278 (Ont. S.C.), was a

case without a separation agreement. Both custody and access were dealt

with by court order, albeit one entered by consent. Custody was said to be

joint, but as in the present case one parent had both primary care and

control and the ultimate decision-making power. In Field, that parent was

the father. The mother was given specified access. Notwithscanding the

effect of a change of residence on the exercise of those access rights,

Oslcr 1. declined to make an order restraining [he father from moving his

children from Ontario to California.

Holding that the father had de facto custody, Osler 1. stated

the governing principle in these terms (at p. 280):

Therc is unassailable authority for the proposition that, in theabsence of special circumstances, a pan:nt who has custody has theright to remove the children without the pennission of the otherparent.

12

This statement was later quoted with approval by the Ontario

Court of Appeal in Re Landry and Lavers (1985), 17 D.L.R. (4th) 190, a

case in which, notwithstanding a father's access rights and ·good

relationship" with the children, the Court set aside an order restricting the

mother t s right to move the children out of Ontario.

The best interests of the children were not overlooked in

FUId. Osler J. referred to them as paramount. These interests, he held,

required that the children be allowed to move with their father, a move

which he found would not unreasonably deny access to the mother who bad

the means to visit them at their new location.

The benefit to children of allowing their custodial parent to

make a reasonable choice of where to live was not as well articulated in

those Canadian cases to which I have just referred as it was in other

jurisdictions. One of the first to discuss this benefit was Sachs L.J. in P.

(L M.) (Otherwise E.) v. P. (0. E.), [1970] 3 All E.R. 659 (C.A.). He

said (at p. 662):

When a marriagc breaks up, then a situation normally arises whenthe child of that marriagc) instead of being in the joint custody ofboth Pam1u. must of necessity become one who is in abe custodyofa single parent. Once that position has arisen and the custody isworking weD, this court should Dot lightly interfere with suchreasonable way of life as is selected by that parent to whomcustody has heeD rishtly given. Any such interference may•••produce considerable strains which would be unfair not only to theparent whose way of life is interfered with but also to any newmarriage of that parent.

13

That passage was subsequently relied on by Davies L.I. in

Nash v. Nash, (1973J 2 All B.R. 704 (C.A.), where the custodial parent

(the mother) had accepted a two-year teaching post in South Africa. She

intended to take the parties' five·and-a-half year-old daughter with her

there. The father, who had been exercising monthly access. objected,

mainly on the ground that the long.distance would make access extremely

difficult. The Court permitted the mother to make the move. Davies L.I.

said (at p. 706):

But I emphasise once more that when one parent hu bc:cn givencustody it is a very strong thing for this court to make an orderwhich will prevent the following or a chosen career by the parentwho has custody.

The New Jersey Superior Court, dealing with a mobility case

in 1976, echoed the sentiments of the English Court of Appeal: see

D'Onofrio J'. D'Onofrio 144 N.J. Super. 200, 365 A.2d 27 (Ch.D.), aff'd

per curiam, 144 N.J. Super. 352, 365 A.2d. 716 (1976). Although I do

not regard this decision as bcing even persuasive authority from a legal

viewpoint, J find the comments of the court most helpful to an

understanding of the dynamics of a separated family. The Court said

(365 A.2d at pp. 29-30):

Even under the best of circumstances and where the custodialparent is supportive of a continuing relationship between the childand the noncustodial parent. the nature of a parental relationshipsustainable by way of visitation is necessarily and inevitably of adifferent charaeu:r than that which is possible where the parentsand children reside together as a single-family unit. The ractremains that ordinarily the day-to-day routine of the childJen,

14

especially young ones. and the quality of their environment andtheir general style of life arc that which .are provided by thecustodial parent and which are, indeed, the custodia1 parent'sobligation to provide. The children, after the parents' divorce orseparation, belong to a different famUy unit than they did when theparents Jived together. The new family unit consists only of thech.ildmn and the custodial parent, and what is advantageous to thatunit as a whole, to each of its members individually and to the waythey relate to each other and function together is obviously in thebest interests of the cbildren. It is in the context of what is beat forthat family unit that the precise nature and terms of visitation bythe noncustodial parent must be considered.

The importance of the new family unit was also recognized by

this Court in Korpesho v. Korpesho (1982), 19 Man.R. (2d) 142. That

was a case in which the mother had sole custody of the child with

exceedingly generous access rights to the father (some 1'6 days in a

calendar year). The mother had remarried and wished to re..locate with

her new husband in Edmonton. This Court allowed the motherls appeal

from an order refusing ber permission to make the move. The Court did

so notwithstanding a provision in the decree nisi prohibiting the removal of

the child from Winnipeg. In doing so, Monnin I.A. (as he then was)

stressed his view that the child's best interests Jay with the economic and

psychological heaJth of the new family unit.

From a consideration of all the cases to which I have referred

and the principles underlying the decisions in them, I believe it can be said

that, as of 1985, the following propositions were valid:

1.

15

A custodia) parent was free to change the place of residence of a

child in his or her custody without prior approval unless the power

to make the decision to do so was restricted by court order or

agreement;

2. On an, application by an access parent to forbid such a change, the

onus was on that parent to show that the change was motivated by an

intention to defeat his or her access rights t was unreasonable or was

contrary to the best interests of the child;

3. In deciding the best interests of a child, a judge would ordinarily

defer to the decision of the parent to whom the ultimate decision­

making power with respect to that child had been entrusted. this, of

course, assuming that the custodial parentis decision was bona fide

and reasonable;

4. A custodial parent whose decision-making power with respect to

residence was restricted could nonetheless apply to a court for an

order permitting a proposed move:

5. On such an application, the custodial parent had to show a sufficient

change in circumstances to justify the removal of the restriction and

the bestowal of the decision-making power with respect to residence

on him or her; and

16

6. Where such a custodial parent discharged his or her burden, the

other parent was in exactly the same position as he or she would

have been in on an application to forbid a change by a custodial

parent whose decision-making power was unrestricted.

The m,orce Act, R.S.C. 1985, c.3 (2nd Supp.) contained

some new provisions respecting the custody of, and the access to, children

of divorced parents. I will examine these to the extent that they may have

a bearing on the continuing validity of those propositions.

Section 16(7) provides:

[T]he court may include in an order ... a term requiring any penonwho bas custody of a child ... a.nd who intends to change the placeof residence of that child to notify... any person who is grantedaccess to that child of the change, the time at which the chan8c willbe made and the new place of residence of the child.

This provision, to my mind, presupposes the existence of a

right to make such a change of residence without express approval by the

court. There would be no purpose in requiring a person to give such

notice, as distinct from a notice of application for permission to move, if

the change of residence could not be made unilaterally. Unless, then, the

right to decide on a change of residence is expressly excluded from the

order of custody, the custodial parent has the right.

)

17

The notice requirement would seem to serve two purposes, the

first to ensure that the access parent has notice of the move and its

significant details and the second to give the access parent the opportunity

to seek an order forbidding the move or one making new provision for

access after it. There is nothing in the subsection, howeverII to place an

onus on the custodial parent to justify the move. Rather, the onus would

continue to faU on the access parent to show cause why the change should

not be made.

The next subsection, 16(8), requires a court when deaJina with

custody to take ioto account only the child's best interests. This represents

a shift in emphasis. Whereas the child's best interests were previously

paramount, they became as a result of this subsection the only

consideration. The question remains, however t as to whether it is better in

a child's interests, where a custodial parent desires to move, to deny that

parent the right to move in order to preserve the existing access

arrangements or to modify the access arrangements in order to

accommodate the move.

Parliament has not attempted to resoJve that question.

Although by s. 16(10) it clearly favours continuing contact between a child

and his or her non-eustodial parent 8S the norm, Parliament qualifies the

extent of that contact by limiting it to as much contact as is consistent with

the child's best interests. What remains to be determined is which course

is in the child's best interests.

18

Arguably. the question should be decided on the facts of each

case, a solution which was adopted by the Ontario Court of Appeal in

Carter v. Brooks, supra. This solution, however, is inconsistent with the

previous case law, is not required by the Divorce Act and gives only an

illusion of making the order which is in a child's best interests. In all but

unusual cases. the custodial parent is in a better position than a judge to

decide what is in the child I s best interests. A judIe can scrutinize the

decision, ensure that it is reasonable and even say, when clearly shown,

that the custodial parent's decision is not in fact in the child's best

interests, but initially it is the person entrusted with the responsibility of

bringing up the child who probably knows best.

This view is in accoed with the view of the majority in

MacGYJler lI. Richards, supra, wherein Abella J.A. said (at p. 491):

III deciding what restrictions, jf any, should be placed on a parentwith custody, courts should be wary about interfering with thatparent's capacity to decide, daily, what is best for the chUd. Thatis the very responsibility a custody order imposes on a parent, andit obliges - and entitles - the parent to exercise judgments whichrange from the trivial to the dramatic. Those: judgments mayinclude whether to change neighbourhoods, or provinces, orpartners, or jobs, or friends, or schools, or religions. Each ofthose significant judgments may affect the child in some way, butthat docs not mean that the court has the right to prevent thechange.

The inevitable genesis of a court having to make a decision isbecause of some stress and instability. To minimize futurestresses, as opposed to more utopian and less realistic objectives,the court should be overwhelmingly respectful of the decision­making capacity of the person in whom the court or the other

)

19

parent bas entrusted primary responsibility for the child. Wecannot design a system which shields the non·custodial parent fromany change in the custodial parent's life which may affect theexercise of access. The emphasis should be, rather. on deferringto the decision-making responsibilities of the custodial parent,unless there is substantial evidence that those decisions impair thechild's, not the access parent's. Jong-term well-bein,.

I also adopt the words of Professor James McLeod where, in

his annotation to ArDIn 1'. Slguin (1994), 5 R.F.L. (4th) 186 (Ont.

Gen. Div.), he wrote (at p. 187):

The best interests of the child are intimately intenwined with thebest interests of the custodial parent and any new family unit. Aparent who is comfortabJe and happy in his or her environment willparent more effectively than one who is unhappy and under stressbecause he or she has been separated from family or friends, or hasbeen prevented from pursuing his or her career.

By virtue of s. 16(10) of the Divorce Act, which requires a

court dealing with custody to take into considerdtion the wiIJingncss of the

custodial parent to facilitate access, the degree of deference to be shown to

a custodial parentIs decision to relocate must depend to some extent on his

or her willingness to facilitate alternative access arrangements. The access

possible, if the relocation is allowed, will inevitably be less than when the

parties Jived in close proximity, but arrangements can usually be made.

depending on distance, the age of the child and the parties I fmanciaJ

circumstances, for contact to be maintained by telephone and

correspondence and by occasional and vacation visits. What is important

for a court, in deciding the issue of relocation, is the willingness of the

20

custodial parent to co-operate in making the best alternative arrangements

reasonably possible.

Subject to the willingness of the custodial parent to facilitate

access after relocation and to the change of emphasis with respect to the

child's best interests, it is my view that the propositions which I believe

were valid in 1985 remain valid today.

The alternative approach of Carter v. Brooks would lead to

uncertainty and inconsistent decisions and tend to immobilize custodial

parents in an age when mobility is often necessary for psycholo&ical if not

economic survival. On the other hand, the law as I understand it allows a

custodial parent a measure of choice subject to sufficient safesuards to

ensure that the custodial parent does not act maliciously. unreasonably or

contrary to what is adjudged to be the best interests of the child in any

special circumstances which may be applicable.

Although the parents in this case agreed on -joint custody· t

their terminology was inaccurate. In determining who has custody of a

child, the incidents of custody must be looked at rather than the language

used: see Abbott v. Taylor (1986). 2 R.F.L. (3d) 163 (Man. C.A.). Field

J'. Field, supra. The principal incidents of custody are the ultimate

)

)

21

decision-making power and primary care and control. These the mother

had. She was agreed upon as the sole custodian.

The interim court orders followed the language of the parties'

agreement. Nothing in those orders changed the mother's status.

The specified access provided for in the separation agreement

was obviously intended to apply so long as both parties remained in

Winnipeg. I say "obviously" because the agreement expressly

contemplated the possibility of the mother moving from Winnipeg and did

no more, in that event, than permit the father to apply to stop her.

The mother as the custodian decided the family should move

to Edmonton. She was obliged to give the father notice of her intended

move, but this was no different than the requirement of s. 16(7) of the

Di'orce Act. It provided notice to the father of her intention and of the

specifics of the proposed move, to the extent that they were then known to

the mother. This gave the father the opportunity, which he took, to

challenge the mother's decision.

The mother's decision was bonafide, as the trial judge found,

and reasonable. On the Jatter point, the judge may have questioned the

reasonableness of the decision, but in doing so he imposed an onus on the

mother to justify her reasons for the move. No such onus should have

been placed upon her and, in any event, the question should not have been

22

whether the mother's reasons were justified, but whether they were

reasonable. In my opinion, they were.

As far as the best interests of the children are concerned, the

trial judge faiJed to consider the effect on the mother, and through her 011

the family unit. of beina unable to Jive where she wishes. It serves DO

useful purpose to consider, as the trial judge did, the presence of the

mother's parents and one brother in Winnipeg. The mother is aware of

that, but has chosen to relocate close to other family members. It is her

life to live as she, not the judge, thinks appropriate and deference should

be shown to her decision particularly as she is willing to facilitate

altemative access arrangements.

The present access arrangements are certainly desirable, but

not if they can only be maintained at the price of an unhappy custodial

parent. The overall best interests of the children require that they have the

most favourable home environment in which to develop. This involves

deference to the mother's choice of where to live with as much CODtinUing

contact between the children and their father as is reasonably possible.

For these reasons, the appeal was allowed and the order

forbidding the move to Edmonton set aside. Other changes in the order as

it pertains to access and perhaps support may be required as a

consequence. Those are matters which will have to be addressed in the

Queenls Bench.

mother.

23

The costs of this appeal should be paid by the father to the

. %4~ ~;~r4It I.A..?

We agree:

J.A.

\