Appeal of Case where Judge Erred in Decision on Child Mobility

This case is an appeal of a trial decision to allow the mother to take the parties’ three sons with her to Ottawa. Prior to trial, the boys lived primarily with their father in Thunder Bay.

Justice Pierce acknowledged that she could not reverse the trial decision simply because she would have made a different decision if she were the trial judge. Instead, she must find an error in law or fact finding in order to reverse the trial decision.

Justice Pierce concluded that there was an error in law because the trial decision lacked a full consideration of the relevant factors in mobility decisions (as outlined in the Supreme Court decision of Gordon v. Goertz) namely:

1. the existing custody arrangement and relationship between the child and custodial parent;
2. the existing access arrangement and the relationship between the child and the access parent;
3. the desirability of maximizing contact between the child and both parents;
4. the views of the child;
5. 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; and
6. disruption to the child of a change in custody; and disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

Justice Pierce determined that the trial judge also made fact finding errors.

Unfortunately, Justice Pierce could not simply overrule the trial decision and award the father primary residency of the children. This is because the children had been living with their mother in Ottawa since the trial, seven months earlier and the court had no evidence regarding the best interests of the children at the time of the appeal. As such, ordering that the children move back to live with their father may not be in their best interests. Instead, Justice Pierce ordered a new, expedited, trial to determine the children’s best interests.