The issue of mobility is one of the most, if not THE most complicated and difficult in family law. There is no middle ground between one parent and child/children moving away from the other parent – you either can go or not. A recent Court of Appeal decision may add another layer to the factors for consideration.
The parties separated in 2012. They have a son, now 7 years old, with educational and developmental difficulties. The Mother had remarried and her husband was from Spain. At the time of the trial the new husband was not able to work in Canada – since his work Visa had not been extended. The child had been in the Mother’s primary care and the Father had reasonable and generous access; although not more than 2 nights in a row in the regular schedule. Holidays were shared cooperatively.
The Mother brought an application seeking to move from Edmonton to Spain with the child. The trial judge set out the law regarding mobility citing the seminal Supreme Court of Canada decision of Gordon v. Goertz 1996 CanLII 191 (SCC). The trial judge found that the Mother had not demonstrated a reasonable plan for meeting the son’s educational needs should he be permitted to leave. Although, it was recognized that there was no expert evidence proffered to support exactly what those needs were, the trial judge concluded that the child’s educational needs would be better met by his continuing in his existing school with the resources he had been utilizing for the prior 4 years. The trial judge also found that since the child had been coded with a severe language deficit he would be “significantly disrupted in his education by moving to Spain. The trial judge recognized that there would also be a “significant disruption” to the child should he be moved from his mother’s primary care. In the result the trial judge concluded that the child should remain in Edmonton – a move was not in the child’s best interests – the risk to the child’s education if he moved was greater that then risk of the child being primarily parented by his father (notwithstanding that the father had such limited parenting time with the child, on balance).
The Mother appealed the lower court decision on the basis that the trial judge erred in “misapprehending the evidence” regarding the child’s educational development. The Court of Appeal reviewed the evidence read in at trial that addressed the child’s special needs including his speech and language assessments and therapy as well as school records from when he was first assessed (at 2 years, 11 months) up to and including fresh evidence proffered by both the Mother and the Father.
Ultimately the Court of Appeal concluded that it was in the child’s best interests to remain in the primary are of his mother and allow a relocation to Spain. This was largely determined by consideration of the nature of the child’s strong bond with his Mother; it was the Mother who continually attended to the child’s physical, emotional, health and education needs with the support from the Father as access parent. It was this primary care relationship that the Court of Appeal found should not be disrupted; seen as all the more important given the child’s special needs and based on the more current information provided by the parties concerning the child’s developmental needs.
In his compelling dissent, however, Watson JA found that the “crucial issue” is what is in the child’s best interest and not the best interests of the parents. The child’s best interests, in his view, would be served optimally by his mother and her new partner remaining in Alberta with Mother in the continued role as primary care giver. And while the Court gave the Mother permission to relocate she was NOT required or directed to do so, presumably giving opportunity for the Mother to make the decision that is in the child’s best interests and not go. Just because you can does not mean you should.