Children Lost During Covid-19 Due to Divorce

During Covid-19, the issue of relocation of children has become a burning issue between parents due to social and economic challenges brought on by the pandemic. Many have lost their jobs while others have secured jobs in cities where they need to move. In many situations like these, some parents have reported moving to another city or province without seeking other parent’s consent or a court order, inviting urgent motions in the court. 

The Supreme Court of Canada, in Gordon v. Goertz, has decided that a custodial parent cannot move the children anywhere without seeking other parent’s consent. The Supreme Court has determined a threshold requirement of demonstrating a material change in the circumstances affecting the child, which is given in the following:

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.

If the above threshold is met, the judge on the application will embark on a fresh inquiry into the child’s best interests, regarding 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.

On the issue of interim mobility when there is no custody order or agreement between the parties, Plumley v. Plumley is the leading case. This case sets out the factors that ought to be important in deciding a mobility issue on an interim basis, given in the following:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
2. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.  

In a recent case Hearty v. Hearty, decided during Covid-19, the court followed the leading authority on mobility – Gordon v. Goertz, which establishes that the best interests of the child remain the ultimate question in every case. The court summarized the law on change on mobility as follows:

• 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.

If someone needs help with his/her matter on the issue of mobility or any other family law issue, please feel free to contact us at Millars Law. Call us at (519) 657-1LAW or info@ml-dev.thirdeyeinsights.ca 

By: Nasar Iqbal