In Bjornson v. Creighton, the Ontario Court of Appeal developed a two-step approach of first determining custody and then determining mobility. The point of this approach was first to determine who is to have sole custody and then take into account the views of the custodial parent with respect to residence.
However, in Terris v. Terris the Ontario Superior Court of Justice reinterpreted the two-step approach laid out in Bjornson. The Court in Terris determined that it would be artificial to require a court to determine custody without incorporating into the inquiry, the proposed place of residence of each parent. Similarly, it would be impractical to determine residence without considering the issue of custody. Thus, the Court in Terris adopted a blended approach requiring a court to determine custody while, at the same time, taking into account the proposed place of resident of each parent. This blended approach was endorsed by the Court of Appeal in British Columbia in Nunweiler v. Nunweiler.
The case of Terris v. Terris is contextual and fact-driven. Ms. Marcoux and Mr. Terris met at church in Ottawa in 1996 and were married on May 3, 1997. Their two children were born in Ottawa, their son in 1999 and their daughter in 2001. The couple were avid followers of the Ottawa Church of Christ and the church was an important part of their lives The parties also had financial problems throughout their marriage. As well, subsequent to the birth of each child, Ms. Marcoux experienced debilitating postpartum depression. Pressure from the church, severe financial difficulties and Ms. Marcoux’s mental health problems combined to create an unhappy and unhealthy situation.
After the birth of their daughter, Ms. Marcoux wished to go to Australia with the children to visit her mother who resided there. Mr. Terris preferred that she wait until he could go with them. Instead Ms. Marcoux took the children to Montreal to visit her father. She called Mr. Terris and notified him that she had decided to go to Australia with the children for three weeks. Mr. Terris reluctantly agreed to let them go. However, Ms. Marcoux’s visit to Australia extended from a three week visit to approximately a five month visit. During this time, Ms Marcoux was not completely honest or open with Mr. Terris leading him to believe that she would return to Ottawa. After five months, Ms. Marcoux told Mr. Terris that she was not going to return to Ottawa. As a result, Mr. Terris retained counsel and commenced proceedings in Ottawa in February 2002. Mr. Terris commenced a motion and this motion proceeded unopposed requiring Ms. Marcoux to return the children to Ottawa within 30 days. Ms. Marcoux did not comply with this order in an attempt to avoid the jurisdiction of the Ontario court. When the Ottawa police got involved Ms. Marcoux was forced to bring the children back to Canada.
The proposed plan and position of Ms. Marcoux was to assume sole custody of the children and to move them to Australia. Her view was that in Australia she would have child-care help from her mother, availability of a house and car and that her life and that of the children would be more relaxed and less difficult than it would be in Ottawa. She maintained that she would facilitate access by arranging for the children to visit Canada and for Mr. Terris to visit the children in Australia. She decided that she would not return to Australia without the children and would remain in Ottawa with them if relocation was not permitted.
Mr. Terris only sought sole custody and primary residential care of the children as an alternative to the children moving to Australia with their mother. If Ms. Marcoux remained in Ottawa he sought joint legal custody, primary residence of the children with their mother and access to himself.
The Court in Terris then explored the best interests of the children, which remains the most important consideration in every case. The Court decided that the primary advantage of the father’s plan for the children to stay in Ottawa was that that the children’s relationship with him would be facilitated. Furthermore, the mother’s conduct did reflect upon her parenting ability. Her unilateral decision to remain in Australia with the children and subsequent conduct demonstrated that she did not adequately appreciate of the importance of the father to the children.
In light of the proposed plans of residence of Ms. Marcoux and Mr. Terris, the best interests of the children and other relevant factors, the Court made the following order with respect to custody and residence: the parents were awarded joint legal custody of the children; the children’s primary residence would be with their mother in Ottawa; the children would reside with the father according to a set schedule. By adopting a blended approach, the court did not consider the issues of custody and place of residence in isolation and were better able to better meet the best interests of the children.