SUCCESS FOR VOGEL LLP IN DIFFICULT CUSTODY CASE INVOLVING MOBILITY, COUNSEL FOR THE CHILD, MAXIMUM CONTACT AND FRIENDLY PARENT DOCTRINES
In this case, the fact that the Mother was more likely than the Father to maximize contact with and promote a meaningful relationship between the child and the access parent was a strong factor in the Justice’s decision to maintain the status quo (primary care with the Mother), despite the 10-year old child’s expressed wishes to the contrary.
The parties in this case were married in 2002 and separated in 2006. From separation until January 1, 2014, both parents resided in Calgary, their son K resided primarily with the Mother and the Father had specified access.
In March 2010, the Father unsuccessfully applied for sole custody of K. In January, 2013 the Father applied for shared parenting, but his application was struck for failure to comply with filing deadlines. In February 2013, the Father’s new partner applied for Guardianship of K. Her application was dismissed. In June 2013, the Father again applied for shared parenting.
In the fall of 2013, the Honourable Justice B.E.C. Romaine was assigned the parties’ case management Justice. By that point in time, counsel had been appointed for the child by court order.
The Father’s Application for shared parenting was heard December 2, 2013, and shared (week on, week off) parenting ordered to commence January 1, 2014.
On May 22, 2014, barely five months into the shared parenting regime, the Father advised the Mother via email that he was moving to Innisfail, Alberta effective July 1, 2014. He began the email with “I just wanted to let you know about a couple of changes that will be affecting you”. The email advised that the Father and his new partner had already purchased a house in Innisfail and proposed that the child attend school and reside primarily in Innisfail effective September 2014, listing a number of reasons why he felt the school in Innisfail would be better for the child.
It was clear from the Father’s oral submissions at the hearing that the move to Innisfail was primarily financially motivated, but also that the Father and his new partner preferred the lifestyle associated with a smaller center. When questioned during the hearing, the Father admitted that he had not actually considered K, nor the effect the move would have on K’s time with his Mother, in his decision to relocate. He had primarily considered the interests of his new family as a whole, which included his new partner and two other children.
It is important to note that the 10-year-old child’s own communicated wishes, which had been repeatedly submitted to the court by his legal counsel for a number of months prior to the hearing, was to reside primarily with the Father.
The self-represented Father had not realized he could not simply make a unilateral change to the parenting arrangement, and was required to bring a mobility application. The Father filed an application for primary care of the child on July 18, 2014. The Mother filed her cross-application for primary care on August 28, 2014. The matter was not heard until December 3, 2014, and the child remained in Calgary with the Mother in the interim.
Madam Justice Romaine heard the matter on December 3, 2014, and reserved her decision. She released a very well-reasoned decision on December 29, 2014.
In her decision, the Justice carefully considered the leading case on mobility applications, Gordon v. Goertz, and upon delving into a fresh inquiry as to the child’s best interests determined that it was in the child’s best interests to remain in Calgary in his Mother’s primary care.
The court found that despite ridiculous and disingenuous allegations as to the Mother’s parenting abilities, advanced by the Father, it was clear that both parents were good, loving parents. It was also clear that the child had a strong bond with both parents.
Having considered section 16(1) of the Divorce Act, the court had concerns regarding the Father’s willingness to maximize contact between the child and the Mother. Some of the reasons for this concern are as follows:
- The fact that the Mother was willing to offer a much more generous access schedule to the Father, than was the Father if he was granted primary care;
- The Father’s consistent failure to respect the right of first refusal clause in the parties’ court order;
- The Father’s unwillingness to be flexible and accommodating with respect to the parenting schedule, even when the Mother had recently afforded him the very same courtesy she was then requesting back;
- The Father’s lack of willingness to support the child’s relationship with his extended maternal family;
- The fact that the Father was clearly unwilling to encourage contact between the Mother and the child during his parenting time, even when away with the child for extended holidays.
In addition, the Justice noted a couple of additional concerns:
- The role of the Father’s new partner, as there were a number of noted instances that demonstrated a lack of respect for the Mother’s parenting rights;
- Potentially inappropriate discussions the Father may have had with the child, throughout the litigation;
- The Father’s apparent unwillingness to communicate with the Mother on parenting issues.
The Mother argued that the child’s expressed preference of residing with his Father ought to be given minimal weight, given that the child is unable to assess the implications of this proposed change of parenting, in particular the effect it would have on his relationship with his Mother. The court agreed.
The Court concluded the Father’s conduct was akin to “a failure to appreciate any viewpoint other than his own and any interests other than the interests of his new family” and that the Father “finds it difficult to consider or respect the Mother’s position as K’s mother and long-time primary care-giver.”
Ultimately, the court determined that the past was, in the circumstances, a good predictor for the future and that the determining factor was that child was more likely to benefit from maximum contact with both of his parents if his Mother were granted primary care.