Can a work schedule that prevents one from exercising visiting rights with a child prevent the other parent from moving the child further away, thus exasperating an already difficult situation? The Ontario Superior Court recently ruled in the affirmative.

A Busy Workload

The parties in this case were the divorced mother and father of a three-year-old child. The child lived with the mother, who shared custody and decision-making responsibilities with the father. The father was in the military, and his job often required him to be away for short periods of time. As a result, he was unable to spend 50% of his planned days and weekends with the child, requiring the mother to assume additional parental responsibility. As a result of this, the mother brought a motion to allow her to move from the Ottawa area to Toronto. She had family, friends with kids, and a boyfriend living in Toronto whom she planned to marry. She was also offered a job in her field, as a real-estate agent, that would pay more than her job in Ottawa. In response to the mother’s request, the father argued the move would be detrimental to the child because it would take her farther away from him.

Applying Gordon v Goertz

In cases where parents wish to move a child to another city or jurisdiction, the court must determine two issues as set out by the Supreme Court of Canada in Gordon v. Goertz. The first is whether the parent seeking the move could demonstrate a material change in circumstances. The second is which of the parties parenting plans would be in the child’s best interest. In this case, the Court determined the mother’s plan to move and remarry would amount to a material change in circumstances unforeseen at the time of the separation agreement was entered into. The child would certainly have less access to her father. However, regarding the second part of the analysis, the Court found the mother had put the child ahead of her career, while the father had done the opposite. The Court considered this a strong factor in the best interests of the child, and determined the relationship between mother and daughter must be maintained. The Court also found the mother’s proposal of granting the father visitation every second weekend (with the child being handed off midway between Ottawa and Toronto) would not result in substantially less access time for the father since he frequently cancelled his scheduled access anyways. The Court determined the mother was not moving with the intention of depriving the father of access. Lastly, the Court performed an analysis as to whether there would be a significant disruption to the child’s family, schools, and community. Since the child was only three, she had not started school yet and there would be minimal disruption to her every day life. The mother’s request was ultimately approved by the Court. The divorce lawyers at NULaw can help you with the important decisions to make during a separation and divorce. Our lawyers can help you navigate custody and access disputes, including child support, spousal support, and division of property. We help our clients understand their rights, allowing them to make informed, rational decisions. Contact us online or call us at 416-481-5604 to schedule your consultation.

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