Mobility Applications

Sometimes a parent has to move to meet the best interest of a child or children.  This is commonly referred to as a mobility case or mobility application.  It is only following the determination of custody, guardianship and access that a Court then considers a parent’s mobility application.  As set out in P.V. v. D.B.:

Mobility

[106]      Where there is an issue of mobility, the court should first determine custody, and then determine the mobility issue:  see e.g. M.J.S. v. L.S., supra, at ¶  131; Ganson v. Ganson, 2003 BCSC 544 (CanLII), 2003 BCSC 544 at ¶  55.  The principles enunciated by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (S.C.C.), [1996] 2 S.C.R. 27, 19 R.F.L. (4th) 177, with respect to the determination of parental mobility on a variation application also apply to an initial custody determination, without the requirement to demonstrate a material change in circumstances:  Nunweiler v. Nunweiler 2000 BCCA 300 (CanLII), (2000), 186 D.L.R. (4th) 323, 2000 BCCA 300 at ¶  27; M.J.S. v. L.S., supra, at ¶  136.  The relevant principles involved in determining whether the custodial parent should be allowed to move with the child were summarized by McLachlin J. in Gordon v. Goertz, supra, at ¶  49 (principles relating to the demonstration of a material change in circumstances are omitted):

4.         The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5.         Each case turns on its own unique circumstances.  The only issue is the best interest of the child in the particular circumstances of the case.

6.         The focus is on the best interests of the child, not the interests and rights of the parents.

7.         More particularly the judge should consider, inter alia

(a)      the existing custody arrangement and relationship between the child and the custodial parent;

(b)      the existing access arrangement and the relationship between the child and the access parent;

(c)        the desirability of maximizing contact between the child and both parents;

(d)      the views of the child;

(e)      the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s    ability to meet the needs of the child;

(f)         disruption to the child of a change in custody;

(g)      disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [Emphasis in original]

[107]      It is clear that the custodial parent’s reason for moving is not to be considered, unless it relates to the parent’s ability to meet the needs of the child.  For example, a custodial parent seeking to move to disrupt access might demonstrate a lack of consideration for the child’s best interests, which would weigh against the custodial parent:  see Gordon v. Goertz at ¶  23; Nunweiler at ¶  33.

[108]      Also of note, in cases where a custodial parent says that they will not move if the child is not permitted to move with them, a court has the option of maintaining the status quo rather than permitting the custodial parent to move with the child or changing custody:  see Karpodinis v. Kantas 2006 BCCA 272 (CanLII), (2006), 55 B.C.L.R. (4th) 90, 2006 BCCA 272 at ¶  20 (although stating that the status quo must not be overemphasized).

[109]      Burnyeat J. in One v. One 2000 BCSC 1584 (CanLII), (2000), 81 B.C.L.R. (3d) 315, 2000 BCSC 1584, set out a list of twelve factors that courts in British Columbia have considered since Gordon v. Goertz in deciding whether the custodial parent should be permitted to move.  These are (at ¶  24):

1.         Parenting capabilities of and children’s relationship with parents and new partners;

2.         Employment security and prospects of each spouse and, where appropriate, their partner;

3.        Access to and support of extended family;

4.         Difficulty of exercising proposed access and quality of proposed access if move is allowed;

5.         Effect upon children’s academic situation;

6.         Psychological and emotional well-being of children;

7.         Disruption of children’s existing social and community support and routines;

8.         Desirability of proposed new family unit for children;

9.         Relative parenting capabilities of either parent and respective ability to discharge their parenting responsibilities;

10.      Child’s relationship with both parents;

11.      Separation of siblings; and

12.      Retraining or educational opportunities for the moving parent.  [Authorities omitted]

In the case of Orring v. Orring, 2006 BCCA 523, the British Columbia Court of Appeal in discussing Gordon v. Goertz, stated the following:

[37]           With reference to the best interests of the child test, McLachlin J. recognized that by the nature of the subject matter and the multitude of factors at play, “a measure of indeterminacy” was inevitable at:  at para. 20.  She further observed that two statutory provisions, one relating to the conduct of the parents and the other fostering maximal beneficial contact between the child and both parents, provided guidance in relation to the best interests test. 

[38]           As to the less than certain nature of the test McLachlin J. said:

20        The best interests of the child test has been characterized as “indeterminate” and “more useful as legal aspiration than as legal analysis”:  per Abella J.A. in MacGyver v. Richards (1995), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443.  Nevertheless, it stands as an eloquent expression of Parliament’s view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake.  The multitude of factors that may impinge on the child’s best interest make a measure of indeterminacy inevitable.  A more precise test would risk sacrificing the child’s best interests to expediency and certainty.  Moreover, Parliament has offered assistance by providing two specific directions – one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents. 

[39]           On the statutory provision limiting the relevance of conduct, McLachlin J. said:

21        In s. 16(9), Parliament has stipulated that the judge “shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child”.  This instruction is effectively incorporated into a variation proceeding by virtue of s. 17(6).  Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.       [Underlining added.]

22        This stipulation is important in applications for variation of custody based on relocation of the custodial parent.  All too often, such applications have descended into inquiries into the custodial parent’s reason or motive for moving (see Carter v. Brooks (1990), 30 R.F.L. (3d) 53 (Ont. C.A.); Colley v. Colley (1991), 31 R.F.L. (3d) 281 (Ont. U.F.C.), and J. G.  McLeod, Annotation to Williams v. Williams (1992), 38 R.F.L. (3d) 100, at p. 103).  If the move is considered “necessary”, the decision is considered justified, entitling the parent to retain custody in the new location.  If, on the other hand, it is made for a less noble reason, the custodial parent may be required to choose between losing custody or moving.  The focus thus shifts from the best interests of the child to the conduct of the custodial parent.

23        Under the Divorce Act, the custodial parent’s conduct can be considered only if relevant to his or her ability to act as parent of the child.  Usually, the reasons or motives for moving will not be relevant to the custodial parent’s parenting ability.  Occasionally, however, the motive may reflect adversely on the parent’s perception of the needs of the child or the parent’s judgment about how they may best be fulfilled.  For example, the decision of a custodial parent to move solely to thwart salutary contact between the child and access parent might be argued to show a lack of appreciation for the child’s best interests: see McGowan v. McGowan (1979), 11 R.F.L. (2d) 281 (Ont. H.C.); Wells v. Wells (1984), 38 R.F.L. (2d) 405 (Sask. Q.B.), aff’d (1984), 42 R.F.L. (2d) 166 (Sask. C.A.).  However, absent a connection to parenting ability, the custodial parent’s reason for moving should not enter into the inquiry.

[40]           Sections 16(10) and 17(9) of the Divorce Act establish a principle of maximum contact with each parent.  With respect to that principle, McLachlin J. said:

[24]      The second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contact between the child and both parents.  Both ss. 16(10) and 17(9) of the Act require that “the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child”.  The sections go on to say that for this purpose, the court “shall take into consideration the willingness of [the applicant] to facilitate” the child’s contact with the non-custodial parent.  The “maximum contact” principle, as it has been called, is mandatory, but not absolute.  The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.

[41]           An underlying assumption in Gordon v. Goertz is that the “maximum contact” principle militates against relocation because the proposed move will usually adversely affect the access parent’s ability to see the child, which is contrary to Parliament’s stated intention of promoting maximum contact between the child and both parents.  A court is therefore faced with having to balance the benefits of the proposed relocation against the child’s interests in maintaining maximum contact with the access parent and may decide against permitting the move:  see Karpodinis v. Kantas (2006), 55 B.C.L.R. (4th) 90, 2006 BCCA 272; leave to appeal to S.C.C. refused (16 November 2006).  The maximum contact principle is not an absolute one but it is a mandatory consideration when determining whether a proposed relocation is in the best interests of the child.  There are cases where the other principles will outweigh the negative effects of decreased contact with one parent and thus the custodial parent is permitted to move.  This Court’s decision in Lowcay v. Lowcay (2000), 8 R.F.L. (5th) 313, 2000 BCCA 447 is an example.

In Karpodinis v. Kantas (2006), 55 B.C.L.R. (4th) 90, 2006 BCCA 272; leave to appeal to S.C.C. refused (16 November 2006), the BCCA upheld the trial judge’s decision refusing the mother’s proposed move of their child from Vancouver to Housten, Texas for an infant child that was less than 3 years of age.  The trial judge placed significant emphasis on the age of the child, the disruption that would occur to the father’s relationship with the child because of the distance of the proposed relocation and the importance of regular contact between the parent and the child given critical developmental bonding issues that were occurring for the child.  As the trial judge set out, as referred to by the BCCA:

[11]           The chambers judge summarized the competing interests and decided the case as follows: 

[17]      The issue for determination is “what is in the best interests of the child” having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.  Each case turns on its unique circumstances.  I am guided by the principles enunciated in Gordon v. Goertz, 1996 CanLII 191 (S.C.C.), [1996] 2 S.C.R. 27 (S.C.C.) and Nunweiler v. Nunweiler, [2000] B.C.J. No. 935 (B.C.C.A.).