Rowan Davison, senior family lawyer, and managing partner, of Dreyer and Associates Family Lawyers, had a significant win for our client.
We represented the father, who sought to vary the custody and access provisions of an order from August 24, 2009, which provided the respondent mother sole custody of the parties’ child. Our client had reasonable access and both parents were guardians of the child.
At the time of the Order, the child was 3 years old.
The Scenario
Until August 2018, both parties lived in the lower mainland of British Columbia. In April 2018, the father gave formal notice of his intention to move out of the lower mainland with the child.
What he was seeking was the relocation of a child when that child primarily resides with the other parent.
In his application, the father sought joint custody, primary residence, and an order that the child be permitted to move with his father.
What the law says
Mr. Davison argued sections 16 and 17 of the Divorce Act (Canada) and the Supreme Court of Canada case of Gordon v. Goertz, [1996] 2 S.C.R. 27, which summaries the law at paragraphs 49-50:
The law can be summarized 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
The Decision
In the end, the importance of the child 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?
Mr. Davison was able to successfully argue that a change in circumstances had occurred and that it was in the best interests of the Child to change his primary residence and for him to relocate with his father.
Our client was ecstatic with the result. You can read the full details of the case here.
If you are in a similar situation or need help regarding another child custody or family law issue, please contact one of our family law lawyers at Dreyer and Associates Family Lawyers to review your case.
