PART I: WOODHOUSE v. WOODHOUSE

These reasons, released by the Ontario Court of Appeal on June 4, 1996, were delivered by Justice Weiler (with Justices Houlden and McKinlay concurring). Justice Osborne strongly dissented while Justice Dubin did not take part in the final judgment.

A mother of two boys, ages five and seven, appealed from a trial order of Justice Carnwath restricting residence of the boys to the judicial districts of Peel, Halton, and Hamilton-Wentworth.

FACTS

Here is a thumbnail summary of the facts:

• Parties married October 1987.
• Children born 1988 and 1990.
• Child care duties shared by the parties with assistance of the maternal grandmother.
• Marriage deteriorates but parties continued to live under the same roof.
• Mother visits Scotland and meets present husband, a native of Scotland.
• Parties separate formally.
• November 1992 - separation agreement.
• Custody to the mother subject to reasonable access on reasonable notice by the father, including, but not limited to, access every other weekend, part of Christmas day, and one-half of long weekends. Further access to be mediated.
• Terms of the separation survive the divorce.
• Before July 1993 - mother gives requisite notice to the father of her intention to move to Scotland with the children.
• July 1993 - Mother remarries in Canada and continues to live in the Hamilton area with extended family.
• Father brings application for custody and, in the alternative, requests a non removal from jurisdiction order. Mother's cross-applies for permission to take the children to live with her in Scotland and increased child support.

TRIAL DECISION OF JUSTICE CARNWATH, APRIL 1994

The trial judge:

• dismissed the father's application for custody;
  
• found at the time the separation agreement was negotiated neither parent contemplated that the other would leave southern Ontario;
  
• restrained the mother from moving with the children to Scotland;
  
• allowed the father to have significantly more access to the children;
  
• increased support payments from $7,200 to $13,000 a year.

PRELIMINARY OBSERVATIONS MADE BY THE COURT RE THE LEGAL TEST TO BE APPLIED

• Carter v. Brooks (1990), 30 R.F.L. (3d) 53 (Ont. C.A.): required that the views of the custodial parent be accorded "a reasonable measure of respect" (p. 62) or "considerable respect".
  
• MacGyver v. Richards (1995), 11 R.F.L. (4th) 432 (Ont. C.A): the views of the custodial parent are to be accorded "an overwhelming respect" or "presumptive deference."
  
• Gordon v. Goertz, 1996 CarswellSask 199, [1996] 5 W.W.R. 457, 19 R.F.L. (4th) 177, 196 N.R. 321, 134 D.L.R. (4th) 321,141 Sask. R. 241, 114 W.A.C. 241, [1996] 2 S.C.R. 27, (sub nom. Goertz c. Gordon) [1996] R.D.F. 209, Supreme Court of Canada, May 2, 1996: The judge will normally place great weight on the views of the custodial parent.  The Saskatchewan Court of Appeal decision can be found at (1996), 128 Sask. R. 156 and the decision in first instance is reported at (1993), 111 Sask. R. 1.

These tests had to be reconciled by the Ontario Court of Appeal. The Supreme Court of Canada position was, understandably, adopted.

THE DECISION IN GORDON V. GOERTZ (as interpreted by Justice Weiler)

Preliminary test set out in Gordon v. Goertz:
Prior to considering the merits of an application to vary a custody or access order made pursuant to s. 17 of the Divorce Act the judge must be satisfied of:

(1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;

(2) which materially affects the child; and

(3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

Is this a presumptive onus? I submit that it is not. The first two items of the test are but a restatement of the Divorce Act requirements. The third test introduces a factor which counsel must now be quite careful to cover in separation agreements and evidence at trials. The concept of foreseeability is now part of custody - access law. What was in the parties' contemplation at the time of the original agreement? The assumptions of the parties should be spelled out.

The court noted that the Supreme Court of Canada required that the onus of meeting the threshold requirement is on the access parent. I submit that it should not be too difficult to meet that initial test if a case has any merit at all. What is important now, however, is to spell out the assumptions at the time the separation agreement is made, as I have noted above.

The Supreme Court of Canada noted that the 1985 Divorce Act "now instructs that the interests of the parents are no longer relevant in custody determinations":

According to the Supreme Court of Canada:

1. Parental conduct is not a factor:

• unless it relates to the "ability of the parent to meet the needs of the child",
  
• or unless the reasons for moving reflect adversely on "the parent's perception of the needs of the child or the parent's judgment about how they may best be fulfilled".

2. Regard must be had to the maximum contact provisions of the Divorce Act. (ss. 16(10) and 17(9)) .

• These principles are limited to contact consistent with the child's best interests.
  
• Such contact should be restricted where it would not be in the child's best interests.

3. There is no presumption in favour of the custodial parent. Reasons for this given by Justice McLachlin in Gordon v. Goertz were as follows:

(1) The wording of the Divorce Act makes no reference to a presumption. In imposing a threshold requirement on an access parent to show a material change in circumstance when seeking a variation, Parliament has laid a special burden on the access parent. If the access parent meets that burden, the best interests of the child are no longer presumed to lie with the custodial parent. To reinstate the presumption derogates from this finding. Instead, as indicated by Morden A.C.J.O. in Carter v. Brooks, "[b]oth parents should bear an evidentiary burden" of demonstrating where the best interests of the child lie.

(2) If a presumption were to apply to cases involving the relocation of the custodial parent it would apply to all applications for variation of custody and access. Had Parliament intended this it would have said so.

(3) The duty of ascertaining the best interests of the child is entrusted by Parliament to the judge, not the custodial parent.

(4) The onus which follows the adoption of a presumption carries with it the tendency of deflecting "the inquiry from the facts relating to the child's needs and the parents' ability to meet them to legal issues relating to whether the requisite burden of proof has been met".

(5) While in most cases the opinion of the custodial parent will reflect the best interests of the child, it is the best interests of the particular child in each case which must be determined. "[G]eneral rules that do not admit of frequent exceptions can[not] evenly and fairly accommodate all of the varying circumstances that can present themselves"; per Morden A.C.J.O. in Carter v. Brooks. The inquiry is an individual one which must be based on the particular facts of the case.

(6) A presumption in favour of the custodial parent sees the relationship between the child and its parents as static. The needs of the child and the respective ability of the parents to meet those needs may change following the making of the custody order.

(7) A presumption in favour of the custodial parent shifts the focus "from the best interests of the child to the interests of the parents".

VIEWS OF THE CUSTODIAL PARENT

Justice Weiler further summarized the approach of McLachlin J. who stated that the views of the custodial parent are entitled to "great weight" and "great respect and the most serious consideration". In addition, McLachlin J. modified the approach in Carter v. Brooks, when she held that it is not for the court to enter into an inquiry as to the reason why the custodial parent wishes to move unless it is relevant to that parent's ability to meet the needs of the child. Thus, the comments in Carter v. Brooks, concerning the lack of necessity of the proposed move would not be pertinent.

The weight to apply to the custodial parent's views:
Justice McLachlin stated that the weight which one applies to the decision of the custodial parent depends on the facts of the particular case. A balance must be struck between the importance of the child remaining with the custodial parent in the new location against the continuance of full contact with the child's access parent, its extended family and its community.

THE SEPARATION AGREEMENT - THE LEGAL TEST

Counsel agreed that the principles enunciated by McLachlin J. in Gordon should govern the analysis in the present case and that the threshold test of a material change of circumstances as found by the trial judge had been met in this case.

While the Court of Appeal noted correctly that separation agreements are not binding on the court because it is the interests of the children rather than those of the parents which are at issue, nevertheless, the appeal court noted that it is reasonable to think that at the time the separation agreement was made it reflected the parties' views of the best interests of the children. The trial judge should therefore consider:

1. the prior agreement; and,
2. the evidence of the proposed or changed circumstances.

The court noted that the legal tests here are the same, whether we are under the Children's Law Reform Act (where a variation of a separation agreement is under consideration) or under the Divorce Act. We must consider the best interests of the child and the maximum contact principle contained in ss. 16(10) and 17(9) of the Divorce Act.

The court correctly tells us that one must examine the actual involvement of the parent and not simply the label attached to custody. I therefore add a comment which I have mentioned in my previously published articles. It is not sufficient to rely on the words, "joint custody" and believe that rights or obligations are thereby protected. One must spell out the parenting regime that the parties anticipate. And even then, what will be most important in any subsequent judicial intervention are the actual facts on the ground. Legal terminology will be secondary when examining a child's best interests. We are not concerned with the rights of the parents; we are concerned only with the child's best interests.

CONSIDERATION OF FACTORS REGARDING THE BEST INTERESTS OF THE CHILD

Justice Weiler reviewed the non-exhaustive list of factors contained at pp. 26-27 of McLachlin J's judgment in Gordon:

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

Justice Weiler then considered each of the above factors in relation to the particular facts of the case before the Court of Appeal.

THE ASSESSOR'S REPORT

The assessment report was examined. In dissent, Justice Osborne was very critical of the assessor's approach. The majority opinion, however, appeared to rely on this report, apparently placing some emphasis upon the fact that the assessment was court initiated as opposed to "party" initiated. Justice Weiler noted that the assessor maintained that to allow the children to migrate to Scotland would make it all but impossible for the children to maintain a meaningful relationship with their father.

A FACT DRIVEN DECISION?

Reading the decision as a whole, it becomes apparent that perhaps the most significant factual matter impinging on the decision making process of the majority was the course of conduct of the mother in retaining the children past the agreed upon time in Scotland during a visit there and applying to the Scottish court for custody without disclosing the existence of the Ontario proceedings. The court noted that at this time the mother had sold her business and had only a six-month lease on a townhouse in Ontario. Having noted these points, it is apparent that the mother viewed the ultimate result as a fait accompli.

Even though the father then obtained a consent order requiring the mother to return to Ontario on April 19, 1993, the mother failed to return immediately and the father had to return to court again at which time he obtained an interim interim custody order. At that same time, the mother retained counsel in Scotland and obtained an order there granting her interim custody of the children, not disclosing the ongoing Ontario proceedings. Justice Weiler stated:

"The mother's actions in remaining in Scotland with the children beyond the agreed period and in obtaining an interim custody order from the Scottish courts, raised the question whether, if permitted to move, she would comply with any Ontario order concerning access."

The lesson is clear. Clients should generally not act unilaterally in the face of ongoing court proceedings. The mother's actions flew in the face of the court's orders. The mother showed that she could not be counted on to obey an Ontario court order once she were granted permission to relocate with her children abroad. Given the result in Gordon v. Goertz, one can speculate that the result might have been quite different but for the mother's unilateral actions.

A VIGOROUS DISSENT

Justice Osborne would have allowed the appeal and permitted the mother to move to Scotland with her children. According to Justice Osborne, Gordon v. Goertz:

"made it clear that the reasons for the custodial parent's move, or proposed move, are not usually relevant to the best interests inquiry. " ... Although in light of Gordon, the reasons for the proposed move can no longer be cast as an important issue in the best interests inquiry, the reasons for the move are still relevant in the case of a spouse who is proposing to move solely to frustrate legitimate access arrangements."

The tenor of the dissent was that the mother was not moving "solely to frustrate legitimate access arrangements".

Justice Osborne then dealt further with the 'reasons for the move' conundrum:

"I think in most cases the reasons for the proposed move will surface because there is a manifest connection between the expected effects of the move and the custodial parent's reasons for proposing the move in the first place."

I submit that this is a most sensible observation. All the cases do examine the reasons even when they say they do not. The reasons for the move had best be good ones, I submit. For example, a move simply to frustrate access will be frowned upon, to put it mildly.

The maximum contact principle was not an absolute requirement, Justice Osborne noted from the Gordon decision. Such contact must be consistent with the best interests of the child. The justice pointed to the result in Gordon as proof where the mother was permitted to relocate to Australia even though this would adversely affect the child's time with the father.

Justice Osborne interpreted the majority in Gordon to support the general proposition that one should not proceed on the basis of any presumptions about what is in the children's best interests. The proper course is to consider the individual circumstances of the child whose best interests the court has been called upon to ascertain.

As noted above, Justice Osborne took a different view of the assessor's approach:

"An examination of the assessor's report and his trial evidence reveals that he was strongly biased in favour of preserving a non-custodial parent's ability to exercise frequent access, particularly in the case of young children. This bias was not case-specific."

Justice Osborne went to some length to demonstrate that the assessor had a general bias. The justice stated that the assessor's stated views that children do well in separation and divorce if they have involvement from both of their parents -

"reveal his basic pre-disposition in favour of maintaining frequent access by the non-custodial parent. His comments strongly suggest that he would oppose any significant move by any custodial parent if it would in any material way reduce frequent access. In my view, this presumptive type of reasoning has been foreclosed by McLachlin J.'s reasons in Gordon v. Goertz.
...

Just as according a presumptive deference to the custodial parent's decision to move may be said to tilt the inquiry too much in favour of the custodial parent, similarly asking the singular question whether it is in the children's best interests that access be decreased tilts the inquiry too much in favour of the non-custodial parent. Framing the inquiry in that way tends to limit the required balancing of relevant factors. The better approach is to determine whether there is a valid reason to decrease access when all of the relevant factors (including the custodial parent's decision to move, which is entitled to "great respect") are taken into account. That is to say that both the benefits and detriments of the proposed move must be considered and balanced. That consideration and balancing was not undertaken in this case. The trial judge unduly emphasized one detriment of the proposed move -- reduced access -- and did not give sufficient consideration to the benefits of the proposed move.

Rather than according great respect to Mrs. Woodhouse's decision to move, the trial judge seems to have given very little weight to it."

PART II: LUCKHURST v. LUCKHURST

In a unanimous, very brief decision (actually an endorsement) released the same day by the same Court of Appeal panel, the court upheld the lower court's permission granted to the mother of two children to move from London, Ontario to Cobourg, Ontario. [The trial decision is reported at (1995) 14 R.F.L. (4th) 305.]

The father had argued that the case should not be decided upon conflicting affidavit evidence, as it was. However, the Court of Appeal was not inclined to grant the father's request for a viva voce trial. After all, the court noted, Gordon v. Goertz was decided upon affidavit evidence.

The lesson here is clear: Do not assume that the court will grant you a trial on variation applications. The difference in the evidence presented in the affidavits must relate to substantive matters that would likely affect the outcome.

On the substantive issue of mobility, the court noted that the parties married in 1984, had twin sons in 1986, separated in 1988 and divorced in 1990. Pursuant to the terms of the separation agreement their twin sons, were in the custody of both parents, although their principal residence was with the respondent.

Again, I emphasize, therefore, that joint custody is not a defence to prevent one parent from moving away with the children.

The mother's partner, with whom she had a stable long-term relationship, was concerned about the security of his present employment. He made extensive efforts to obtain other employment in the London area, without success, but was able to obtain a secure position near Cobourg. The distance of the move would enable the children to continue to see their father regularly, although there is undoubtedly some inconvenience to him, the endorsement stated.

The court appeared to have been persuaded that the mother had offered to assist in the preservation of the quality of the relationship that the children had with their father by driving them to meet him at a halfway point between the London and Cobourg. Therefore, the appeal was dismissed. The mother was permitted to move.

PART III: CONCLUSION

Two parental mobility cases. One panel. Two different results. When advising clients contemplating relocating, it is incumbent upon counsel to carefully examine the facts of the recent cases as well as the law. Common sense must be employed. I have not talked with counsel for Mrs. Woodhouse at the time of her Scotland sojourn, but I would imagine that no Ontario family law lawyer would have advised a client to make an application to the Scottish court when proceedings were ongoing in Ontario, fail to make full disclosure, and then disobey the Ontario orders. What could have been a successful application (when looking at Luckhurst) was defeated by the fact situation created by the mother.

Are we any further ahead in terms of the law of parental mobility? Certainly, the decisions appear to be fact driven. What we can be grateful for, however, is that both the Supreme Court of Canada and the Ontario Court of Appeal have told us that there are no presumptions. MacGyver v. Richards (1995), 11 R.F.L. (4th) 432 (Ont. C.A) certainly tilted the scales in favour of custodial parents and some balance has now been brought back to the law. However, as the dissenting opinion of Justice Osborne in Woodhouse demonstrates, an absence of a presumption in favour of the custodial parent will not necessarily totally even the scales. The case law still affords great weight to the custodial parent's views and preferences. That was not enough for the majority in Woodhouse but it will probably be enough for judges to rely upon in other cases where the factors are more evenly balanced.

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