In
Trudel v. Ward, the mother of a nine-year-old child diagnosed with autism sought to relocate
with the child to Fergus, Ontario. The father responded by bringing an
urgent motion to preclude her from relocating with their daughter. The
issue was whether the Court should allow the mother to move to Fergus
on a temporary basis prior to a trial of the matter.
Background
The parties resided in the Ottawa Region. Per a Final Order made in 2014,
the mother had sole custody of the child, who was diagnosed with autism
when she was two years old. The father had parenting time with the child
on alternate weekends, so long as he met certain conditions. The father
alleged that the mother’s desire to relocate was aimed at undermining
his relationship with their daughter. In her defence, the mother argued
that she wanted to relocate their child because Fergus had better autism
support services. Additionally, her cousin resided in Fergus and would
be able to support the mother in caring for the child.
Case Analysis
Gordon v. Goertz was the leading case determining whether a Court should make an order
permitting relocation. This Supreme Court of Canada decision held that
the focus of inquiry must be the child’s best interests, pursuant
to the following considerations:
- The
custody arrangement and relationship between the child and the custodial parent
- The access arrangement and relationship between the child and the access parent
- The desirability of maximizing contact between the child and both parents
- The child’s views
- The custodial parent’s motivation for moving (relevant to that parent’s
ability to meet the needs of the child) - How the change in custody may disrupt the child’s life
- How the removal from family, schools, and the community may disrupt the
child’s life
Case Result
Applying the principals of
Gordon v. Goertz to
Trudel v. Ward, Justice Audet of the Superior Court of Justice held that relocation was
in the child’s best interests for several reasons.
First, it was undisputed that the mother had been the child’s primary
caregiver. Despite the father’s position that the mother would deprive
the child of his care if she moved to Fergus, the evidence showed that
the father voluntarily reduced his parenting time, failed to pay
child support for more than four years, and had anger management issues that made co-parenting
difficult. The mother was the one who secured speech therapy and other
educational supports for the child. The mother’s cousin in Fergus
also had a child with autism and was familiar with support services in
the area. Not only would the cousin be able to help with childcare, but
also the two children would spend more time together. Other benefits of
the move included the availability of applied behavioral analysis therapy
at school, as well as having one educational assistant assigned to the
child specifically. Although Fergus is some distance away from Ottawa,
the child would still be able to spend time with the father every month,
as per the mother’s proposed parenting schedule.
In reaching this decision, Justice Audet was particularly attuned to the
fact that permitting a move before trial could establish a status quo
that may impact the outcome of the trial. If a court finds a genuine issue
necessitating a trial, it will generally be more reluctant to permit temporary
relocation. However, a temporary relocation may be permitted if there
is a strong possibility that the custodial parent’s position will
prevail at trial.
Given the compelling circumstances demonstrating that relocation was in
the child’s best interests in
Trudel v. Ward, Justice Audet found that the mother’s position would likely prevail
at trial and, therefore, permitted her to relocate to Fergus with the child.
Contact Our Firm for Assistance with Your Relocation Case
If you are considering
relocation, or you believe your co-parent inappropriately relocated your child,
Feldstein Family Law Group P.C. will help you determine the best course of action. With negotiation and
litigation skills honed through years of experience, we will fiercely
advocate for what you believe is best for your child.
Call (905) 581-7222 or schedule your free, in-office evaluation
with Feldstein Family Law Group P.C. today.