Case reference: Gordon v. Goertz, [1996] 2 S.C.R. 27
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
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.
