The appellant, the mother of two boys, aged 5 and 7 years, appealed from an order restricting their residence to the judicial districts of Peel, Halton and Hamilton-Wentworth. During the marriage, the child care duties were shared by the parties with the assistance the appellant's mother. After the relationship deteriorated, the appellant visited Scotland, where she met her present husband. In 1992, the parties signed a separation agreement which provided that the mother would have custody of the children subject to reasonable access on reasonable notice by the father, including every other weekend, part of Christmas day, and one-half of long weekends. At that time, neither parent contemplated that the other would leave Ontario. Prior to remarrying, the appellant gave the defendant notice of her intention to move to Scotland where her husband had employment. She claimed that if she were permitted to move, the children would benefit in that she would not have to work outside the home, their maternal grandmother would be nearby, the educational system in Scotland was of high quality, and the entire social fabric of life there would benefit the children whereas if her husband were to remain in Canada, his employment prospects were grim. The appellant had run a dance studio, but had sold it in anticipation of the move and had refused contract employment as a dance instructor on the ground that it could interfere with the move.
The defendant submitted that the $13,000 per year he paid in child support, in addition to mother's income from employment as a dance instructor, was the equivalent of what her new husband would earn in Scotland. An assessor's report concluded that the move would make it all but impossible for the children to maintain a meaningful relationship with their father, and recommended increased access and geographical limitation of the children's residence. On a visit to Scotland with the children, the appellant had stayed beyond the agreed upon period and obtained an interim order from the Scottish courts granting her interim custody, despite ongoing Ontario proceedings. On an application by the father, the trial judge found that it was in the children's best interests that mother be restrained from the move.
- Should the mobility of the mother be restricted in order to ensure access to the children by the father?
Justice Weiler, writing for the majority, reviewed the law in Gordon v Goertz,  2 SCR 27 where McLachlin J (as she then was) held that prior to modifying a custody/access order the judge must be satisfied of:
- 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;
- which materially affects the child; and
- which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
It is the access parent who has the onus of meeting this threshold. Once this threshold is met, the judge hearing the application must conduct a fresh inquiry into what would be in the best interests of the child; the judge can consider the ruling in the original custody matter, but should also consider fresh evidence on the matter. It is also important to have the reports of assessors on the children. She also clearly states there is no presumption in favour of the custodial parent.
Weiler lays out the (non-exhaustive) list of factors from Gordon:
- 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
- the disruption to the child of a change in custody
- the disruption to the child consequent on removal from family, schools, and the community he or she has come to know
but condenses them down to four: the existing custody arrangement, the existence of a new family unit, the position of the custodial parent, and the ability of the custodial parent to meet the needs of the child.
Considering these on the facts, Weiler determined that the move was, at first, in good faith, but the distance was daunting. There was evidence to suggest that the best interests of the children would not be affected adversely by the economic consequences of remaining in Canada. It was true that the appellant's husband's job prospects in Canada were poor, but she likely could have continued to work as a dance instructor.
However, there was also little doubt that the children's relationship with their father would be fundamentally altered if they moved to Scotland. Even if the father were to pay less in child support, he has limited financial means and vacation time within which to exercise access. Sections 16(10) and 17(9) of the Divorce Act require the court to give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child. It is clear Parliament intended to promote a meaningful, continuing post-divorce relationship between the children of the marriage and the access parent.
The report of the assessor had determined that the children had a loving and close relationship with their mother and father, and that they also liked the mother's new husband. The behaviour of the appellant during her Scottish "vacation" indicated to the court that she did not appreciate the importance of the children's contact with their father; she returned only when the father got an interim custody order on the condition that he would not enforce it pending the outcome of the proceedings.
Finding no manifest error in the decision of the lower court, she dismissed the appeal.
Justice Osborne disagreed with the conclusion of the majority and would have granted the appeal. He held that the majority (and the trial judge) gave too much weight to the opinion of the assessor that reduced access would be harmful. Focusing too much on the issue of access essentially creates a presumption in favour of the access parent. He also held that the custodial parent's decision to move should be given great respect as it is accepted there is a significant connection between the best interests of the children and the best interests of the custodial parent. The better approach is to determine whether there is a valid reason to decrease access when all of the relevant factors are taken into account; both the benefits and detriments of the proposed move must be considered and balanced. In this case that balancing was not done, nor was the mother's decision to move given the appropriate amount of respect.
- Lays out the appropriate test and factors to be weighed when considering modifying an custody/access order.
- There is no presumption in favour of the custodial parent in such cases.