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Chalk one up for the Children

A number of years ago, a chill ran through the spines of most separating parents when the Supreme Court of Canada decided that a mom who took off to Australia with the kids could keep them there despite having a caring and interested father.  Though the Court did not approve of the move, it didn’t tell her to return with the kids either.  The practical effect of the decision was to send the message that, in reality, if you do this sort of thing, the Courts won’t stop you.  Fortunately, a number of recent decisions in Alberta and Ontario have refused to follow this trend.  The purpose of this article is to discuss the principals involved in these cases in light of the recent decisions. 

The test established by the Supreme Court is that, “before entering on the merits of an application to vary a custody order 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.”

Following the Supreme Court’s lead, a number of courts have interpreted this to mean that if the parent with the kids wants to move, than that is a change in circumstance which meets these criteria, with the result that the parent with the children is allowed to move.

Consequently, the situation has developed to the point where, in most cases, we advise non-custodial parents they don’t have much say in where the other parent lives.  However, the tide is now turning and we are starting to see some cases going the other way.

The Courts refusing to follow this line of reasoning are doing so on the basis that it is in the child’s best interests to have as much contact as possible with both parents.  In other words, it is not the whim of the parent (who is usually looking to move on, having met somebody else) that the Court focuses on, but the right of the child to have a relationship with the other parent.  As Mr. Justice Mackenzie of our own Court in Red Deer held in August of 2002, “…The presence of a child in a union between a man and a woman is a huge, huge limitation.  It is a tremendous limitation, which, I am afraid, too often is ignored… The responsibility of having children requires that parents do not get their own way.  They simply do not get their own way.  They lose their freedom until those children have been nurtured and brought up… So, when you go about your own life, you have to go about it as best you can to preserve the stability of those relationships, not the relationship with one of you over the other, but the relationship that those children have with both of you…”.

His reasoning was very recently followed in another case by Mr. Justice Slatter where he stated, “We have a situation here where the boys see their father two nights a week and on weekends as well.  They seem to be doing well.  I cannot really see how this proposed move is in the best interests of the children.  It seems to be more designed to accommodate the wife’s personal ambitions and plans”.

Placing more value on a child’s relationship with a parent, instead of the other parent’s desire to move is the right thing to do.  Why we would even need to point this out is troublesome.  One can only be grateful there are still some judges around who apply some common sense in an otherwise topsy-turvy world.

by Tom McCartney
July 21, 2003