Gordon v. Goertz

Gordon v. Goertz
Collection
Supreme Court Judgments
Date
1996-05-02
Report
[1996] 2 SCR 27
Case number
24622
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Saskatchewan
Subjects
Family law
Notes
SCC Case Information: 24622
Decision Content
Gordon v. Goertz, [1996] 2 S.C.R. 27
Robin James Goertz Appellant
v.
Janet Rita Gordon (formerly
Janette Rita Goertz) Respondent
and
Women's Legal Education and Action Fund (LEAF)
and Children's Lawyer for Ontario Interveners
Indexed as: Gordon v. Goertz
File No.: 24622.
1995: December 6; 1996: May 2.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for saskatchewan
Family law ‑‑ Custody and access ‑‑ Variation ‑‑ Change of residence
‑‑ Mother awarded custody on divorce wishing to move to Australia ‑‑ Father applying to vary custody ‑‑ Whether trial and appellate courts erred in permitting child to move to Australia with her mother ‑‑ Principles governing application for variation of custody or access order linked to change of residence of child by custodial parent ‑‑ Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .), s. 17(5), (9).
The parties resided in Saskatoon until their separation in 1990. The mother petitioned for divorce and at trial was granted permanent custody of the young child while the father received generous access. When the father learned that the mother intended to move to Australia to study orthodontics, he applied for custody of the child, or alternatively, an order restraining the mother from moving the child from Saskatoon. The mother cross‑applied to vary the access provisions of the custody order to permit her to move the child's residence to Australia. Relying heavily on the divorce judgment and the first judge's finding of fact that the mother was the proper person to have custody of this child, the judge dismissed the father's application and varied the access provisions in the custody order to allow the mother to move to Australia with the child while granting the father liberal and generous access on one month's notice to be exercised in Australia only. The Court of Appeal upheld that order.
Held: The appeal should be allowed in part.
Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. For that threshold to be met, the judge must be satisfied of (1) a change in the condition, means, needs or circumstances of the child or in 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. An application to vary custody cannot serve as an indirect route of appeal from the initial custody order. The judge must assume the correctness of the initial order and consider only the change in circumstances since the order was issued.
If the threshold is met, the judge on the application must embark on a fresh inquiry into the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. The focus of the inquiry is not the interests and rights of the parents. Each case turns on its own unique circumstances and the only issue is the best interest of the child in the particular circumstances of the case. Section 17(5) of the Divorce Act directs that the judge must consider the child's best interests "by reference" to the material change in circumstances. However, the inquiry cannot be confined to that change alone, isolated from the other factors bearing on the child's best interests. The inquiry, which is based on the findings of fact of the judge who made the initial or previous order as well as the evidence of the new circumstances, does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. Once the applicant has discharged the burden of showing a material change in circumstances, both parents should bear the evidentiary burden of demonstrating where the best interests of the child lie. In assessing the best interests of the child, the judge should more particularly consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) 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; (f) disruption to the child of a change in custody; and (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. The "maximum contact" principle mentioned in ss. 16(10) and 17(9) of the Divorce Act is mandatory but not absolute and the judge is only obliged to respect it to the extent that such contact is consistent with the child's best interests. As set out in s. 16(9) of the Act, parental conduct does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child. In the end, the importance of the child's remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
Where, as here, the child enjoyed frequent and meaningful contact with the access parent, a move that would seriously curtail that contact suffices to establish the necessary connection between the change and the needs and circumstances of the child. Further, since the terms of the previous order were premised on the child’s residence remaining within a reasonable distance of the access parent, the move to Australia would clearly breach this provision. The judge was thus required to embark on a fresh appraisal of the best interests of the child. While he failed to give sufficient weight to all relevant factors, when all these factors are taken into account, the judge was correct in continuing the mother’s custody of the child, despite her intended move to Australia. There is no support in the evidence, however, for restricting the father's access to Australia. Access in Canada would have the advantage of making the father’s limited time with the child more natural while allowing the child to maintain contact with friends and extended family. Accordingly, the custody order should be upheld and the access order should be varied to provide for access to be exercisable in Canada.
Per Gonthier J.: The reasons of McLachlin J. are agreed with. There is also agreement with L'Heureux‑Dubé J.'s explanations of factors pertinent to assessing the best interests of the child that are to be considered, though her views on onus of proof are not shared.
Per La Forest and L'Heureux‑Dubé JJ.: The notion of custody under the Divorce Act encompasses the right to choose the child's place of residence. Absent an agreement or a court order restricting the incidents of custody, such as the child's place of residence, it is thus within the custodial parent's powers to decide such a change of residence, subject to the right of the non‑custodial parent to oppose such choice by seeking a variation of the custody or access terms under s. 17(5) of the Act. Parental agreements as to any right of the child should be encouraged since parents are generally in a better position to assess the best interests of the child, but these agreements are not binding on courts. Restrictions on the rights of custodial parents should be the exception, not the rule, and such restrictions should not be inferred from generous or specified access provisions without more.
The first consideration in an application for variation of custody or access orders under s. 17(5) of the Act is whether there has been a material change of circumstances in accordance with the guidelines in Willick. Once this threshold is reached, the next step is whether the change is such as to trigger a reappraisal of the whole situation of the parties and the children or only necessitates an assessment of the impact of the alleged change or changes on the custody of the child. It is only where the alleged change or changes are of such a nature or magnitude as to make the original order irrelevant or no longer appropriate that an assessment of the whole situation is warranted.
In assessing the merits of a variation application linked to the change of residence of the child by the custodial parent, the following guidelines must inform the courts:
1. All decisions as to custody and access must be made in the best interests of children, assessed from a child‑centred perspective. The Divorce Act makes it clear that the best interests of the child are the only consideration to be taken into account in making orders concerning children. The objective of promoting maximum contact with the non‑custodial parent, inasmuch as it is consistent with such interests, is an important consideration.
2. In the absence of explicit restrictions on the incidents of custody, such as the child’s place of residence, it must be assumed that an existing custody order or agreement reflects the best interests of the child and that the appropriate decision‑making authority lies with the custodial parent. The attribution of custody to one parent carries with it the presumption that such parent is the most able to ensure the best interests of the child. Before custody can be entrusted to one of the parents in divorce proceedings, a number of factors play a role in the assessment of the best interests of the child. The desirability of maintaining maximum contact between the child and both parents is an important factor, but the court must also balance such considerations as the child’s physical, emotional, social and economic needs in light of the quality of his or her relationship with both parents, their respective ability to look after the child’s best interests and, where the child is old and mature enough, his or her wishes and preferences. The assessment of the child’s best interests also involves a consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. If, after such an inquiry is conducted, or by mutual consent of the parties, a child's custody is entrusted to one of the parents, it necessarily follows that such parent has been found to be best able to ensure the best interests of the child, taking into account all the circumstances of the parties and the child. Given that day‑to‑day decisions affecting the child are clearly left to the custodial parent, there is no reason not to defer to his or her ability and responsibility to act in the child’s best interests when it comes to other decisions, such as the change of residence of the child, which will necessarily take into account the impact of access to the non‑custodial parent by the child. In both cases, if the decision constitutes a material change of circumstances, s. 17(5) of the Act allows for a variation inasmuch as such a decision will be found to impact on either the custody of the child or the access by the non‑custodial parent.
3. In determining the best interests of the child under s. 17(5), courts must focus on the impact of the change of residence on the existing custody order and the appropriate modifications to access as the case may be, and generally not proceed to a de novo appraisal of all the circumstances of the child and the parties, since s. 17(5) of the Act provides that “the court shall take into consideration only the best interests of the child as determined by reference to that change”. This particular wording is indicative that where the change consists of the proposed relocation of the child by the custodial parent, what must be ascertained is the impact of such relocation on the existing custody order which must be assumed to properly ensure the child’s best interests. The best interests of the child are rightly presumed to lie with the custodial parent.
4. The non‑custodial parent bears the onus of showing that the proposed change of residence will be detrimental to the best interests of the child to the extent that custody should be varied or, exceptionally, where there is cogent evidence that the child’s best interests could not in any reasonable way be otherwise accommodated, that the child should remain in the jurisdiction. The proposed change of residence of the child by the custodial parent will not justify a variation in custody unless the non‑custodial parent adduces cogent evidence that the child’s relocation with the custodial parent will prejudice the child’s best interests and, further, that the quality of the non‑custodial parent’s relationship with the child is of such importance to the child’s best interests that prohibiting the change of residence will not cause detriment to the child that is comparable to or greater than that caused by an order to vary custody. Where there is an agreement or court order explicitly restricting the child’s change of residence, the onus should shift to the custodial parent to establish that the decision to relocate is not made in order to undermine the access rights of the non‑custodial parent and that he or she is willing to make arrangements with the non‑custodial parent to restructure access, when appropriate, in light of the change of residence of the child.
The proposition that the determination of the best interests of the child under s. 17(5) is best left to the discretionary realm of questions of fact where each relevant factor is to be equally considered and where no party bears any specified burden of proof must be rejected because it fosters uncertainty in the application of the law and encourages litigation and ongoing parental conflict which clearly are not in the best interest of the children.
Here, the change of residence, which involves moving to another country and was also unforseen at the time the custody order was originally made, constitutes a material change in the circumstances of the child. The judge applied the correct test and, upon the evidence before him, properly concluded that the threshold upon which the merits of the application for variation could be considered had been met. Despite the father’s alleged increased involvement in his child’s life since the initial custody order, the custody challenge was essentially based on the inevitable limitation to his access rights the child’s change of residence would involve. Since less than two years had elapsed between the date of the order entrusting custody of the child to the mother and her projected change of residence, this initial order clearly remains highly relevant upon consideration of the merits of the application for variation. All other considerations being equal, in such circumstances a variation application would normally be restricted to an appraisal of the impact of the child’s change of residence on the prior custody determination as well as the appropriate modification to access as the case may be.
On the merits of the application, the judge did not err in law in concluding that the mother should be allowed to move with the child to Australia. The evidence supports his conclusion that the best interests of the child required upholding the custody of the mother. It was entirely proper for him to “rely heavily” on the divorce judge's determination that the best interests of the child were best served by entrusting custody to the mother and, accordingly, to examine the impact of the change of residence on such determination as well as the possible modifications to access. On the evidence, the judgment, in spite of its brevity, makes clear that the father did not satisfy the judge that the impact of the change of residence of the child was such as to warrant a variation of custody, particularly in light of the possibility of accommodating the father’s access and contact with the child. The judge was thus correct in upholding the mother’s custody of the child despite her intended move to Australia. He erred, however, in confining the exercise of the father’s access to the child to Australia. The evidence does not support such a conclusion. The access order should be varied to provide for access to be exercisable in Canada.
Cases Cited
By McLachlin J.
Applied: Willick v. Willick, [1994] 3 S.C.R. 670; referred to: Wilson v. Grassick (1994), 2 R.F.L. (4th) 291; Baynes v. Baynes (1987), 8 R.F.L. (3d) 139; Docherty v. Beckett (1989), 21 R.F.L. (3d) 92; Wesson v. Wesson (1973), 10 R.F.L. 193; Watson v. Watson (1991), 35 R.F.L. (3d) 169; MacCallum v. MacCallum (1976), 30 R.F.L. 32; Messier v. Delage, [1983] 2 S.C.R. 401; Wickham v. Wickham (1983), 35 R.F.L. (2d) 448; Wright v. Wright (1973), 40 D.L.R. (3d) 321; Wainwright v. Wainwright (1987), 10 R.F.L. (3d) 387; Korpesho v. Korpesho (1982), 31 R.F.L. (2d) 449, rev'g (1982), 31 R.F.L. (2d) 140; Francis v. Francis (1972), 8 R.F.L. 209; MacGyver v. Richards (1995), 11 R.F.L. (4th) 432; Carter v. Brooks (1990), 30 R.F.L. (3d) 53; Colley v. Colley (1991), 31 R.F.L. (3d) 281; McGowan v. McGowan (1979), 11 R.F.L. (2d) 281; Wells v. Wells (1984), 38 R.F.L. (2d) 405, aff'd (1984), 42 R.F.L. (2d) 166; Young v. Young, [1993] 4 S.C.R. 3; Field v. Field (1978), 6 R.F.L. (2d) 278; Landry v. Lavers (1985), 45 R.F.L. (2d) 235; Bennett v. Drouillard (1988), 15 R.F.L. (3d) 353; Appleby v. Appleby (1989), 21 R.F.L. (3d) 307; T. (K.A.) v. T. (J.) (1989), 23 R.F.L. (3d) 214; Lapointe v. Lapointe, [1995] 10 W.W.R. 609; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3.
By L'Heureux‑Dubé J.
Applied: Willick v. Willick, [1994] 3 S.C.R. 670; approved: MacGyver v. Richards (1995), 11 R.F.L. (4th) 432; disapproved: Carter v. Brooks (1990), 30 R.F.L. (3d) 53; referred to: Benoît v. Reid (1995), 171 N.B.R. (2d) 161; Talbot v. Henry (1990), 25 R.F.L. (3d) 415; Brothwell v. Brothwell (1995), 135 Sask. R. 178; Young v. Young, [1993] 4 S.C.R. 3; Racine v. Woods, [1983] 2 S.C.R. 173; Frame v. Smith, [1987] 2 S.C.R. 99; Pelech v. Pelech, [1987] 1 S.C.R. 801; Richardson v. Richardson, [1987] 1 S.C.R. 857; G. (L.) v. B. (G.), [1995] 3 S.C.R. 370; Kruger v. Kruger (1979), 25 O.R. (2d) 673; Lapointe v. Lapointe, [1995] 10 W.W.R. 609; Wright v. Wright (1973), 40 D.L.R. (3d) 321; Field v. Field (1978), 6 R.F.L. (2d) 278; Landry v. Lavers (1985), 45 R.F.L. (2d) 235; Wells v. Wells (1984), 38 R.F.L. (2d) 405; Adie v. Adie (1991), 89 Sask. R. 183; Levesque v. Lapointe (1993), 21 B.C.A.C. 285; Droit de la famille ‑‑ 1826, [1993] R.J.Q. 1728, aff’d [1995] 4 S.C.R. 592 (sub nom. P. (M.) v. L.B. (G.)); W. (V.) v. S. (D.), [1996] 2 S.C.R. 108; C. (G.) v. V.‑F. (T.), [1987] 2 S.C.R. 244; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; Thomson v. Thomson, [1994] 3 S.C.R. 551; P. (L.M.) v. P. (G.E.), [1970] 3 All E.R. 659; Nash v. Nash, [1973] 2 All E.R. 704; In the Marriage of R and R (1985), 60 A.L.R. 727; In the Marriage of Holmes (1988), 92 F.L.R. 290; In the Marriage of Fragomeli (1993), 113 F.L.R. 229; In the Marriage of I (1995), 19 Fam. L.R. 147; Cabott v. Binns (1987), 9 R.F.L. (3d) 390; Droit de la famille ‑— 501, [1989] R.D.F. 316; Stewart v. Stewart (1990), 30 R.F.L. (3d) 67; Snell v. Farrell, [1990] 2 S.C.R. 311; Docherty v. Beckett (1989), 21 R.F.L. (3d) 92, leave to appeal refused, [1990] 1 S.C.R. vii; Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165; King v. Low, [1985] 1 S.C.R. 87; Grant v. Brotzel (1993), 115 Sask. R. 96; In re Marriage of Burgess, 51 Cal.Rptr.2d 444 (1996).
Statutes and Regulations Cited
Children Act 1989 (U.K.), 1989, c. 41, ss. 3(1), 8(1), 13(1)(b), (3).
Children's Act, R.S.Y. 1986, c. 22, s. 31(2), (5), (6).
Children's Law Act, R.S.N. 1990, c. C‑13, s. 26(2), (6).
Children's Law Act, S.S. 1990‑91, c. C‑8.1, ss. 6(5)(b), 8, 9(3).
Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 20(2), (5).
Civil Code of Quebec [en. S.Q. 1980, c. 39, s. 1], arts. 570, 653.
Civil Code of Quebec, S.Q. 1991, c. 64, arts. 604, 605.
Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, art. 5.
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 3(1).
Custody Jurisdiction and Enforcement Act, R.S.P.E.I. 1988, c. C‑33, s. 3(2), (5).
Declaration of the Rights of the Child (1924).
Declaration of the Rights of the Child (1959).
Divorce Act , S.C. 1967‑1968, c. 24 [later R.S.C. 1970, c. D‑8].
Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .) [previously S.C. 1986, c. 4], ss. 16(1), (6) to (10), 17(1)(b), (5), (6), (9).
Family Law Act 1975 (Australia), No. 53 of 1975, ss. 63E [ad. No. 181 of 1987, s. 25], 64(1)(c) [am. No. 72 of 1983, s. 29; am. No. 181 of 1987, s. 26; am. No. 37 of 1991, s. 8].
Authors Cited
Bailey, Martha J. "Custody, Access and Religion: A Comment on Young v. Young and D.P. v. C.S." (1994), 11 C.F.L.Q. 317.
Bala, Nicholas, and Susan Miklas. Rethinking Decisions About Children: Is the "Best Interests of the Child" Approach Really in the Best Interests of Children? Toronto: Policy Research Centre on Children Youth and Families, 1993.
Boyd, Susan B. “Women, Men and Relationships with Children: Is Equality Possible?” In Karen Busby, Lisa Fainstein and Holly Penner, eds., Equality Issues in Family Law: Considerations for Test Case Litigation. Winnipeg: Legal Research Institute of the University of Manitoba, 1990, 69.
Bruch, Carol S., and Janet M. Bowermaster. “The Relocation of Children and Custodial Parents: Public Policy, Past and Present”, (1996), 30 Fam. L.Q. 245.
Canada. Department of Justice. Bureau of Review. Evaluation of the Divorce Act ‑— Phase II: Monitoring and Evaluation. Ottawa: Department of Justice, 1990.
Canada. Department of Justice. Communications and Consultation Branch. Custody and Access: Public Discussion Paper. Ottawa: Department of Justice, 1993.
Cohen, Mandy S. “A Toss of the Dice . . . The Gamble with Post‑Divorce Relocation Laws” (1989), 18 Hofstra L. Rev. 127.
Cornu, Gérard. Droit civil: la famille, 3e éd. Paris: Montchrestien, 1993.
Eades, John. "A custodial parent's rights to take a child out of Australia: limited or unlimited?" (1995), 33 Law Soc. J. 46.
Furstenberg, Frank F., Jr., and Andrew J. Cherlin. Divided Families: What Happens to Children When Parents Part. Cambridge, Mass.: Harvard University Press, 1991.
Halsbury's Laws of Australia, vol. 13. Sydney: Butterworths, 1993.
Halsbury's Laws of England, vol. 5(2), 4th ed. London: Butterworths, 1993 (reissue).
Hovius, Berend. "The Changing Role of the Access Parent" (1994), 10 C.F.L.Q. 123.
How, W. Glen, "Young v. Young and D.P. v. C.S.: Custody and Access ‑— The Supreme Court Compounds Confusion" (1994), 11 C.F.L.Q. 109.
King, Valarie. "Nonresident Father Involvement and Child Well‑Being: Can Dads Make a Difference?" (1994), 15 J. Fam. Issues 78.
Kramer, Donald T. Legal Rights of Children, vol. 1, 2nd ed. Toronto: McGraw‑Hill, 1994.
Krause, Harry D. Family Law in a Nutshell, 3rd ed. St. Paul, Minn.: West Publishing Co., 1995.
Krell, Robert. "The Emotional Impact on Children of Divorce and Custody Disputes". In Rosalie S. Abella and Claire L'Heureux‑Dubé, eds., Family Law: Dimensions of Justice. Toronto: Butterworths, 1983, 175.
Maccoby, Eleanor E., and Robert H. Mnookin. Dividing the Child: Social and Legal Dilemmas of Custody. Cambridge, Mass.: Harvard University Press, 1992.
Maidment, Susan. Child Custody and Divorce. Sydney: Croom Helm, 1984.
Marty, Gabriel, et Pierre Raynaud. Les personnes, 3e éd. Paris: Sirey, 1976.
Mayrand, Albert. "La garde conjointe, rééquilibrage de l'autorité parentale" (1988), 67 Can. Bar Rev. 193.
McLeod, James G. Annotation to MacGyver v. Richards (1995), 11 R.F.L. (4th) 433.
McLeod, James G. Annotation to Young v. Young (1994), 49 R.F.L. (3d) 129.
McLeod, James G. Annotation to Williams v. Williams (1992), 38 R.F.L. (3d) 100.
McLeod, James G. Child Custody Law and Practice. Scarborough, Ont.: Carswell, 1992 (loose‑leaf).
Mignault, Pierre Basile. Le droit civil canadien, t. 2. Montréal: Whiteford & Théoret, 1896.
Montgomery, John D. "Long‑Distance Visitation/Access in Family Law Cases: Some Creative Approaches" (1991), 5 Am. J. Fam. L. 1.
Ouellette, Monique. Droit de la famille, 3e éd. Montréal: Thémis, 1995.
Payne, Julien D. Payne on Divorce, 3rd ed. Scarborough, Ont.: Carswell, 1993.
Payne, Julien D., and Eileen Overend, "The Co‑parental Divorce: Removing the Children from the Jurisdiction" (1984), 15 R.G.D. 645.
Payne, Julien D., and Kenneth L. Kallish. “A Behavioural Science and Legal Analysis of Access to the Child in the Post‑Separation/Divorce Family” (1981), 13 Ottawa L. Rev. 215.
Payne, Julien D., and Marilyn A. Payne. Introduction to Canadian Family Law. Scarborough, Ont.: Carswell, 1994.
Richards, Martin. "Divorcing children: roles for parents and the state". In John Eekelaar and Mavis Maclean, eds., Family Law. Oxford: Oxford University Press, 1994, 249.
Simler, Philippe. "La notion de garde de l'enfant (sa signification et son rôle au regard de l'autorité parentale)" (1972), 70 Rev. trim. dr. civ. 685.
Sivin, Edward. "Residence Restrictions on Custodial Parents: Implications for the Right to Travel" (1980‑81), 12 Rutgers L.J. 341.
Wallerstein, Judith S. "Children of Divorce: Report of a Ten‑Year Follow‑Up of Early Latency‑Age Children" (1987), 57 Am. J. Orthopsychiatry 199.
Weisman, Norris. "On Access After Parental Separation" (1992), 36 R.F.L. (3d) 35.
Wilson, Jeffery. Wilson on Children and the Law. Markham, Ont.: Butterworths, 1994 (loose‑leaf).
APPEAL from a judgment of the Saskatchewan Court of Appeal (1995), 128 Sask. R. 156, 85 W.A.C. 156, which dismissed the appellant's appeal from a judgment of Gagne J., allowing the respondent's application to vary the access provisions of the custody order and dismissing the appellant's application for custody of his child. Appeal allowed in part.
Noel S. Sandomirsky, for the appellant.
Neil Turcotte and Deryk Kendall, for the respondent.
Carole Curtis and Donna Wilson, for the intervener LEAF.
Daniel L. Goldberg and Jocelyn Kapusta, for the intervener the Children's Lawyer for Ontario.
The judgment of Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
1 McLachlin J. -- When parents separate, one typically enjoys custody of the child, the other access. So long as both parents live in the same area, this arrangement protects the child's continuing relationship with both parents. However, if the custodial parent decides to move away and change the principal residence of the child, the situation may change. The access parent may be unable to see the child as often as before, if at all. He or she may seek a review of the custody order, contending that removing the child from its familiar surroundings and restricting or depriving the child of access to the other parent is not in that child's best interests. With the prevalence of separated families and the increasing mobility of modern society, such applications are more common. On this appeal, we are asked to establish the principles that should guide judges in making these difficult decisions.
I. The Proceedings to Date
A) The Initial Order
2 The family resided in Saskatoon until the events precipitating this case, and both parents enjoy a warm and loving relationship with their child. Upon separating from the child's father in November 1990, the mother petitioned for divorce under the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .). She obtained an order for interim custody of the child. The order granted the father reasonable access on reasonable notice.
3 The father saw the child frequently following separation. A custody access study prepared before trial showed that the father had “consistently spent more time with the child” than the mother had in the post-separation period. In a mediated agreement pending trial and judgment, the mother and father agreed that the child would reside with both parents on a rotating basis, and that if one party moved, the child would continue to reside in Saskatoon with the other.
4 The matter of custody came on for trial before Carter J. of the Unified Family Court of the Saskatchewan Court of Queen's Bench in February 1993. She dissolved the marriage pending appeal and awarded the mother permanent custody of the child with generous access to the father: (1993), 111 Sask. R. 1. Following the trial, the father continued to spend more time with his daughter than allowed by the order. The mother did not usually object to the additional time; indeed, it helped her to maintain a busy working schedule that often took her out of Saskatoon.
5 When the father learned in the fall of 1994 that the mother intended to move to Adelaide, Australia in January 1995, to study orthodontics, he applied for custody of the child, or alternatively, an order restraining the mother from moving the child from Saskatoon. The mother cross-applied to vary the access provisions of the custody order to permit her to move the child's residence to Australia.
B) The Variation Order
6 Gagne J. concluded that he should permit the child to go to Australia with her mother. After citing various decisions considering similar situations and noting the diverse results, he stated:
I relied heavily on Judge Carter’s judgment and her findings of fact that the mother was the proper person to have custody of this child. There will be an order that the petitioner be allowed to move to Australia to study orthodontics and to take the child Samantha with her.
Now, the respondent will have liberal and generous access to Samantha in Australia on one month’s notice and not to remove the child from Australia. Samantha’s school should be interfered with as little as possible during these visits.
7 The Saskatchewan Court of Appeal upheld the order, finding “no serious error of principle” in the decision, and citing Willick v. Willick, [1994] 3 S.C.R. 670, in support of a conservative standard of review: (1995), 128 Sask. R. 156, 85 W.A.C. 156. The father now appeals to this Court seeking a change of custody, or alternatively, an order permitting access on terms which would allow the child to leave Australia.
II. Relevant Statutory Provisions
Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .)
16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
. . .
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
. . .
(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.
. . .
(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.
(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.
. . .
(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.
III. The Issue
8 This appeal raises only one issue: did the trial and appeal court err in permitting the child to move to Australia with her mother, the custodial parent? This is the first time this Court has considered the effect of a custodial parent’s move on custody and access. Accordingly, both the parties and the two interveners, the Women's Legal Education and Action Fund (LEAF) and the Children's Lawyer for Ontario invited us to consider the principles which should guide judges in dealing with such applications in the future.
IV. Analysis
9 The principles which govern an application for a variation of an order relating to custody and access are set out in the Divorce Act . The Act directs a two-stage inquiry. First, the party seeking variation must show a material change in the situation of the child. If this is done, the judge must enter into a consideration of the merits and make the order that best reflects the interests of the child in the new circumstances. I propose to discuss each stage in turn.
A) The Threshold Condition: Material Change
10 Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the "condition, means, needs or other circumstances of the child". Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther: Wilson v. Grassick (1994), 2 R.F.L. (4th) 291 (Sask. C.A.).
11 The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 8 R.F.L. (3d) 139 (B.C.C.A); Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 10 R.F.L. 193 (N.S.S.C.), at p. 194.
12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.
13 It follows 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.
14 These are the principles which determine whether a move by the custodial parent is a material change in the "condition, means, needs or other circumstances of the child”. Relocation will always be a "change". Often, but not always, it will amount to a change which materially affects the circumstances of the child and the ability of the parent to meet them. A move to a neighbouring town might not affect the child or the parents' ability to meet its needs in any significant way. Similarly, if the child lacks a positive relationship with the access parent or extended family in the area, a move might not affect the child sufficiently to constitute a material change in its situation. Where, as here, the child enjoyed frequent and meaningful contact with the access parent, a move that would seriously curtail that contact suffices to establish the necessary connection between the change and the needs and circumstances of the child.
15 The third branch of the threshold requirement of material change requires that the relocation of the custodial parent not have been within the reasonable contemplation of the judge who issued the previous order: Messier v. Delage, [1983] 2 S.C.R. 401. If a future move by the custodial parent was considered and not disallowed by the order sought to be varied, the access parent may be barred from bringing an application for variation on that ground alone. The same reasoning applies to a court-sanctioned separation agreement which contemplates a future move. In such cases, the application for variation amounts to an appeal of the original order.
16 Conversely, an order which specifies precise terms of access may lead to an inference that a move which would "effectively destroy that right of access" constitutes a material change in circumstances justifying a variation application. (See Wickham v. Wickham (1983), 35 R.F.L. (2d) 448 (Ont. C.A.), at p. 453; Wright v. Wright (1973), 40 D.L.R. (3d) 321 (Ont. C.A.), at p. 324; and see generally on this point Wainwright v. Wainwright (1987), 10 R.F.L. (3d) 387 (N.S.S.C.); Korpesho v. Korpesho (1982), 31 R.F.L. (2d) 449 (Man. C.A.), rev'g (1982), 31 R.F.L. (2d) 140 (Man. Q.B.).) Where, as here, the custody order stipulates terms of access on the assumption that the child's principal residence will remain