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Hearty v. Hearty - Relocation of a Child

This case addresses the factors to consider and that circumstances in which it may be in the child’s best interests to allow a party to relocate with the child despite the parties having joint custody.

Factual Background:

The parties in this case were married for almost 18 years before separating in April of 2018. There are three children of the marriage. On March 3, 2020, Justice Phillips ordered joint custody of the three children and specified that decision-making authority was to be shared. In terms of the older two children, Justice Phillips order the father to continue exercising access at their discretion and ordered a parenting schedule with respect to the youngest child. The father’s position was that after this order, the mother began to withhold his access time with the children and denied him any overnight access. After the final order, the mother decided to move the children and according to the father, began making decisions unilaterally which was in direct violation of the court order. The mother stated that if she was not permitted to move with the children, for financial reasons, she may have to remain in the matrimonial home, which had already been put up for sale, and cancel the sale of the home. The father sought an order (1) an Order preventing the mother from unilaterally changing the schools of their two youngest children; (2) an Order preventing the mother from moving all three children outside of the youngest child’s current school district and (3) alternatively, if the Court allowed the children to move, the father an order that varied parenting time.

Legal Analysis:

In deciding whether the mother should be permitted to move the children, the court relied on the leading authority on mobility, Gordon v Goertz, which holds that the best interests of the children remain the ultimate question. The Court summarized the law on change of primary residence as follows:

  • The parent applying for a change in the custody or access order must meet the threshold requirements of demonstrating a material change in the circumstances affecting the child
  • If the threshold is met, the judge must embark on a fresh inquiry into 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
  • This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances
  • 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
  • Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case
  • The focus is on the best interests of the child, not the interests and rights of the parents.
  • In making the decision, the just should consider,
    • The existing custody arrangement and relationship between the child and the custodial parent;
    • The existing access arrangement and the relationship between the child and the access parent;
    • The desirability of maximizing contact between the child and both parents;
    • The views of the child;
    • 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;
    • Disruption to the child of a change in custody;
    • Disruption to the child consequent on removal from family, schools, and the community he or she has come to know

In considering all of these factors and the unique circumstances of the parties, the Court accepted that it was in the best interests of the children to allow the mother to move with them. In delivering it’s reasons, the court cited that the distinguishing facts which led to the decision were that a move and a change of school had not yet occurred, the commute for an 11 year old is different than that of a 4 year old for example and the disruption to the children was not an important factor. The Court found that the mother had met the threshold requirement in order to be permitted to move the middle and youngest child. The Court also found that the upcoming sale of the home and the mother’s financial situation constituted a material change in circumstances. The Court then moved it’s analysis to consider the fresh inquiry into what would be in the best interests of the children. Since the Order, the father’s parenting time with the youngest child had increased but any parenting time with the older children remained inconsistent as a result of the children’s desire not to spend time with their father. Despite the court’s concern that the views of the older children had been influenced by their mother, the court found that their views have remained consistent and strong. Lastly, the Court found that any disruption to the children would be minimal such that the relocation would still be in their best interests.

In allowing the mother to relocate with the children, the Court was prepared to make a modest increase in the father’s parenting time to account for some of the challenges that will be faced as a result of the children’s relocation. The Court also found that it was reasonable that the mother assume increased responsibility for access transportation within reason.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.

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