BY: VALERIE DYE
Issues related to custody and access to children do not necessarily end once a final order is made in court. One instance where custody and access issues arise after the making of a final order is where the parent with whom the child resides wishes to move to another jurisdiction with the child. Obviously, if this happens the access rights of the other parent will be affected. The parent who will be affected by such a move has the right to apply to the court for custody so that the child will remain in the jurisdiction. How does the court determine such an application?
The main case on point is Gordon vs Goertz which was decided in 1996 by the Supreme Court of Canada. In that case, the mother who had custody of the child decided to move to Australia to study. When the father found out that the mother intended to move to Australia he applied for custody. The mother cross-applied for an order allowing her to move to Australia. The court stated that before the custody order could be varied there must be a material change in circumstances which must include a change in the needs, means, and circumstances of the child or a change in the parent’s ability to meet the needs of the child. The change must materially affect the child and it must be unforeseen. If the court finds that there has been a material change in circumstances, the next step would be to determine whether the move is in the best interest of the child.
The test to determine a material change is very important as it prevents the custodial parent from moving to another jurisdiction on his or her whims and fancy and thereby affect the access rights of the other parent. In Gordon vs Goertz, the mother was allowed to move and the father’s access was varied to allow him to visit the children in Australia. The court was guided by the principle that the custodial parent has a right to remove the child to another jurisdiction as long as the move is not intended to deprive the other parent of access or is contrary to the best interest of the child.
The court does not always grant permission for the custodial parent to move with the children. As stated in Gordon v Goertz, each case turns on its own facts. In the 2011 case of Taylor v Wanless the mother was denied the right to move with the children from Nova Scotia to British Columbia, as her move would neither improve her financial circumstances nor be of benefit to the children. The court found that it was not a case where the mother was unable to find work in Nova Scotia. She simply refused to work. Further, neither the father nor the mother had the means to ensure that the father would be able to travel to visit the children.
It mobility cases the fundamental role of the court is to consider the best interest of the children. Included in that consideration is the fact that children should have access to both parents as often as possible.
