The appellant was accepted into a masters program in Ottawa and proposed to relocate there from Cape Breton with the couple's two children, aged five and seven. The parties currently had joint custody, with the mother having day-to-day care of the children and the father having generous access. The mother was the primary caregiver and the primary bread winner, working at part-time and temporary jobs and sometimes collecting social assistance. The father consistently exercised access and was characterized by the applications judge as an excellent father. The masters program in Ottawa would take her two years to complete while similar schooling on a part-time basis in Nova Scotia would take seven to nine years, dependant on there being sufficient enrolment for the courses to be offered. If the move were allowed, the mother proposed that the children would see their father at Christmas, on March break and in the summer. The applications judge held that the evidence did not support her contention that it would be economically beneficial to obtain her degree in Ottawa instead of Nova Scotia. He also held that the move would be very traumatic for the children. He held that, although there were financial difficulties, it was in the best interests of the children to maintain their current relationship with their father, which the mother appealed to NSCA.
- Should the custody/access order be modified to allow the mother to take the children to Ottawa?
Roscoe, writing for the court, began by summarizing the legal principles on this issue:
- 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
- if the threshold is met, the judge on the application must embark on a fresh inquiry into what is in 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
- this inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances
- the inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect
- each case turns on its own unique circumstances; the only issue is the best interest of the child in the particular circumstances of the case
- the focus is on the best interests of the child, not the interests and rights of the parents
- more particularly the judge should consider, inter alia:
- 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
- disruption to the child of a change in custody
- disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
Before dealing with the grounds of appeal, she turns to the matter of who is the custodial parent whose views are entitled to great respect as the custody agreement gave the parties joint custody. While she agrees that the children spent an (approximately) even number of nights with each parents, it was their mother who was the primary caregiver; making choices about health, school, and the "less significant, but nonetheless obligatory, daily arrangements".
Turning to the appeal, she finds four errors in the ruling of the trial judge. First, the failure to look at the financial situation realistically. Moving to Ottawa to complete her degree would allow the mother to better provide for the children and get them away from subsistence living (which would be required for the 5-7 years of completing the degree through Dalhousie). Additionally, the father did not have the means to become the primary caregiver.
Second, the failure to give great respect to the custodial parent's views. As the mother was the custodial parent, given she was the primary caregiver and breadwinner, her move (which was to improve the family's financial prospects) would be in the children's best interests. There was no attempt by the mother to frustrate access.
Third, the traumatic effect of the move. Roscoe found there was no evidentiary support for the conclusion that it would be traumatic for the kids to move or that there would be significant negative consequences. The reduction in access alone is not sufficient to dictate an order restricting relocation.
Finally, the trial judge overemphasized the reduction in access. Access was always facilitated and there is nothing which ties the father to Cape Breton.
With those errors, she set aside the order of the lower court and granted the appeal, ordering that access be facilitate for at least one month in Cape Breton in the summer, one week over Christmas, and one week at March break.
Summary of the principles to be considered in mobility cases.