Should the children be moved to Kinston or remain in Ottawa? Justice O’Bonsawin started his analysis by looking at Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, the Supreme Court of Canada determined that the ultimate question in every case, including cases involving mobility issues, is what is in the child’s best interests, in all the circumstances. The focus is on the best interests of the child, not the interests or rights of the parents.
At para 49, the court summarizes the law as follows:
a) there is no legal presumption in favour of the de facto custodial parent;
b) the focus is on the best interests of the child and not the wishes of the parent;
c) the court should consider the existing parenting arrangement;
d) it is desirable to maximizing contact with both parents;
e) the views of the child;
f) a custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children;
g) the disruption to the child by changes in school, community and family they have come to know.
[19] In L. (N.D.) v. L. (M.S.), 2010 NSSC 68, 289 N.S.R. (2d) 8 (N.S. S.C.) at para. 10, the court provided a helpful list of additional factors to be considered when applying the framework from Gordon . They are as follows:
• the number of years the parents cohabited with each other and with the child;
• the quality and the quantity of parenting time;
• the age, maturity, and special needs of the child;
• the advantages of a move to the moving parent in respect to that parent’s ability to better meet the child’s needs;
• the time it will take the child to travel between residences and the cost of that travel;
• feasibility of a parallel move by the parent who is objecting to the move;
• feasibility of a move by the moving parent’s new partner;
• the willingness of the moving parent to ensure access or will occur between the child and the other parent;
• the nature and content of any agreements between the parents about relocations;
• the likelihood of a move by the parent who objects to the relocation;
• the financial resources of each of the family units;
• be expected permanence of the new custodial environment;
• the continuation of the child’s cultural and religious heritage; and
• the ability of the moving parent to foster the child’s relationship with the other parent over long distances.
Keeping the above analyses in mind, Justice O’Bonsawin in Arthurs v Cress and Place, 2020 ONSC 4892, said that the goal of the Affidavits is to support the position of the party putting them forward. Instead, the Judge chose to rely more heavily on the words of the parties as exchanged by way of texts. On January 9, 2020, the parties had discussions via texts regarding Ms. Cress moving to Kingston with the children. Mr. Arthurs clearly responded in the text that he was aware that it was “better for the kids and the future in a lot of ways…in no way am I stopping you from going it’s a great opportunity.” Mr. Arthurs consented to Ms. Cress’ move to Kingston with the children. It is important to note that Ms. Cress has the support of her sister in Kingston who acts as a caregiver when necessary.
After the parties separated, the children remained with Ms. Cress and Mr. Arthurs moved in with his sister. Subsequently, the parties rented a house in Manotick, Ontario, for a period of thirty-six days. This can hardly be said to have create a status quo.
After Ms. Cress moved to Brockville, she drove the children to Manotick on the weekends for Mr. Arthurs to exercise his access with the children.
Ms. Cress’ sister and her husband offered to buy a second home in Kingston for Ms. Cress and the children. The plan is for Ms. Cress to rent to own the home. Until the purchase of the home in Kingston was terminated, Ms. Cress stayed in Brockville with her parents. Once the house was purchased, Ms. Cress and the children moved to Kingston.
As a result of the above analyses, the Judge decided that the children could remain with the mother in Kingston.
Mobility is one of the most emotional and difficult cases to decide. The party moving or staying needs knowledgeable, competent lawyers to fight for your position. We will do that for you at Shankar Law. We are happy to assist and guide you through whatever challenges you have in your family life. We work all over Ontario, but primarily in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.
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