Best interests of child a guiding principal

With any major event in life, the dissolution of a marriage can have drastic effects on a life, especially when children are involved.

With any major event in life, the dissolution of a marriage can have drastic effects on a life, especially when children are involved.

When parents have two separate households the decision to move away can lead to a lengthy, emotionally charged court battle.

Before we delve into the issue of mobility, it is important to set out a bit of background on custody and access in Canada.

Where there is an existing divorce in place, the governing statue for the custody and access of children is the 1985 Divorce Act.

The act is federal legislation and therefore orders made in accordance with it are applicable throughout Canada. Custody refers to the day-to-day care of the children and determines the primary residence of the children.

While it is possible to have a joint custody arrangement in place, joint custody does not always equate to an equal amount of time with each parent. The children will often reside in one home, the primary residence, more than the other.

Access makes it possible for the child to enjoy a full relationship with both parents and extended families.

The main goal of the courts is to enforce the “maximum contact” principle. This principle simply states that it is in the child’s best interests to have maximum contact with both parents.

Generally custody and access arrangements are made by way of a court order and those orders may be varied if a material change in the circumstances is found to be present, such as one parent choosing to relocate, an issue that is becoming more and more common in Canada.

There are many reasons for a parent wanting to move, a person may have an employment opportunity, may want to be closer to their family, may wish to re-marry or may simply want a fresh start.

However, regardless of the motive, a proposed move involving any significant distance will have considerable impact on the child, and their parents.

The leading case on the issue in Canada is Gordon v. Goertz (1996). Gordon holds that these mobility issues are to be determined in accordance with the “best interests of the child.”

However, each case is to be determined based on it’s own specific circumstances. This can make decisions extremely complex and difficult to determine the possible results if the matter is brought before a judge.

In conjunction with the increasing number of cases adjudicating this issue, there also appears to be a much higher than normal number of appeals, especially when both parents are suitable to care for their children and can lead to exceptionally high legal bills.

Gordon has set out that a court should consider, the existing custody and access arrangement and the relationship between the child and the parents; the desire to maximize contact between the child and both parents; the views of the child; the custodial parent’s reason for moving will only be considered the exceptional cases 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; and the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

Ultimately the court must weigh if it is in the best interests of the child to remain in the community they currently reside in or to remain with the custodial parent. Most times it is found that a change in custody would be a larger disruption, however, the farther away the move, the less access the other parent will be able to exercise due to distance and cost.

Legally Speaking appears every second week in LIFE. It is intended for information purposes only. Readers with a specific legal problem should consult a lawyer. This week’s column was written by David Brant, a student-at-law with the Red Deer law firm Duhamel Manning Feehan Warrender Glass. Brant can be reached at 343-0812 or at www.reddeeraltalaw.com.

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