Thursday, November 26, 2009

All i wanna do is get outta this place..

Margaret calls LawLINE as soon as it is open, following a heated discussion with her ex- husband Kyle the evening before. She is breathless and angry as she tells me her ex- husband is ‘keeping her prisoner’. Alarmed, I ask her why she has not called the police. She goes on to explain that what she means is he states he will ‘keep the children’ with him if she decides to move from the island they both live on. I ask her to give me some more background information about how long they were married and what their custody arrangements are.
Margaret tells me that following their divorce two years ago, the pair shares custody of their 5 and 7 year old children, Ashley and Mark. Margaret has the children during the week and Kyle has them on weekends. While the marriage was blissful and intact, the couple moved to Salt Spring Island (the “Island”), where Margaret was at first happy to play 'stay at home mom' to their children. When the marriage broke down, they agreed in writing at mediation to share the children one week on, one week off. Although Kyle has a well paid job in his field, Margaret was unable to secure work as a commercial insurance broker on the Island. Margaret is only able to get some part time hours selling pet couture clothing at the local markets. Margaret has recently been offered a highly paid position in Kelowna, about 7 hours drive and a ferry ride away. Her parents have also retired there so she would like to move there with the children. Kyle is not happy about this and tells her he will do everything in his power to stop her from taking the children.
Margaret wants to know what, if anything, he can do to stop her from moving. She has already accepted the job and has booked flights for her and the children for next week.
I tell Margaret that if they cannot come to an agreement (and preferably in the form of a consent order) and she goes ahead and moves away with the children, he may make a court application for custody of the children and her actions may go against her. Anything that disrupts the current custody order that they have or significantly disrupts the current access arrangements must be agreed to by both parties or the person moving must have the court’s permission.
Margaret tells me its unlikely Kyle will agree and wonders how she would fare in getting court approval. Because she is the primary custodial parent, surely it will go in her favor?
I tell her that unfortunately, there is no way to really predict what will happen. Each case is decided individually based on the circumstances in that particular case. What the courts do use are some principles – the most important being the ‘best interests of the child’. The Supreme Court of Canada case of Gordon v. Goertz in 1996 sets out these factors and established that there is no presumption in favor of the custodial parent. The court will first look to see if there has been a material change in circumstances (this means – will the proposed move affect the current custody arrangements being exercised now). If a material change of circumstances has been established, the court will then look at the best interests of the child. There are no hard and fast rules here, but in general, some factors that will be considered are (taken from Gordon v. Goertz):
1. The existing custody arrangement and relationship between the child and the 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;
6. Disruption to the child of a change in custody;
7. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

There’s a silence on the end of the phone once I finish telling Margaret this. I ask her if she understands and she tells me she just wants an answer. I tell her that I cannot give her a definitive answer especially as there is contradictory case law on this topic. Essentially, though, without Kyle’s consent and given the distance she is planning on relocating, she will need to convince a judge that it is in the best interests of her children to do so. Moving for a new well paid job and family support are two reasons that are relevant but she should be prepared for the fact that she may not get the result she wants. If she takes the children without his consent or without an order (as she is contemplating) she puts herself in a poor position if he then goes to court.

There is a website (http://www.bcfamilylawresource.com or type ‘JP Boyd and ‘mobility’ into Google search) that she can review which has a discussion on this very topic. In this discussion, JP Boyd states that as a general principle, a parent with primary residence has a 60% chance of being allowed to move and that the principles outlined above in Gordon v. Goertz are used in the courts analysis of the situation. This issue is also referred to as ‘child mobility’ or mobility rights.

Another useful link with some examples can be found on the Canadian Bar Association website.
http://www.cba.org/CBA/National/may04/feature3.aspx .

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