The Ontario Superior Court of Justice recently rendered a decision on a motion in which the father sought an order requiring the couple’s child, Scarlet, to move from Toronto to live in the United Kingdom with him and attend a particular school in Cheltenham, England.  Scarlet’s Mom opposed the move.

The Facts in Barker v. Barker

Commencing in January 2012, the Barker family lived in Toronto and Scarlet attended Branksome Hall for her schooling.  The parties separated in October 2015.  Scarlet turned 14 on May 14, 2016.

Both Mr. and Mrs. Barker work in the academic field.  In early 2015 Mr. Barker was offered the position of Dean of the Faculty of Arts and Technology at the University of Gloucestershire in Cheltenham, England, to commence in December 2015.  He accepted the position and Scarlet wrote entrance exams to a number of private schools in the Cheltenham area.  She was accepted at one of them.

Once the parties separated, Mrs. Barker told Mr. Barker that she would not rush into a decision about moving and would not commit as to where she and Scarlet would live after the end of the 2015/2016 school year.

The Court’s Decision

The Court concluded that the issue of where Scarlet should ultimately reside was one best left for trial, but in the interim it was in Scarlet’s best interests to remain in her mother’s custody, and continue to live and attend school in Toronto.

Factors Influencing the Court’s Decision

Although this was not strictly a mobility case as Mr. Barker had moved to the UK over 6 months earlier with Scarlet remaining in Toronto, the Court noted that the principles set out in Gordon v. Goertzapplied with respect to the issues of custody.  Ultimately the only real issue to be decided was what arrangement would be in Scarlet’s best interests.

In Gordon v. Goertz, the Supreme Court of Canada held that in assessing the best interests of the child, a judge must consider the following:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between  the child and both parents;

(d) the views of the child;

(e) 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;

(f) disruption to the child of a change in custody; and

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

The Court in Barker also noted that it was to be guided by the factors set out in s. 24 of the Children’s Law Reform Act, which reads as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).  2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.  2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Why Was it in Scarlet’s Best Interests to Remain in Toronto?

Until Scarlet’s wishes could be determined and a final decision made, the Court concluded it was best to not disturb the status quo for several reasons:

  • there was no compelling evidence to support a plan to uproot an adolescent (on what could possibly be an interim basis only) from what has been her home and school for the past 4 years;
  • there was nothing to suggest that Mrs. Barker was an inappropriate custodial parent;
  • Mrs. Barker had been the primary caregiver and Mr. Barker had generous access to Scarlet following his move to the UK;
  • there was no evidence that the school in the UK was superior to the school in Toronto;
  • removing Scarlet from her school, friends, and community was not in her best interests; and
  • Mr. Barker did not have a real and practical plan for Scarlet’s living arrangements and schooling if she were to be ordered to move the the UK.

Lessons Learned

When considering a move that would impact your ability to have close contact with your child, don’t assume that you will be able to get the Court’s blessing to move your child as well, even if the reasons for your move are in your best interests.  You must always keep the best interests of your child in mind, and the decision to uproot a child from the school and community from which she or he is familiar requires careful and thoughtful consideration.

For advice on mobility issues or any other family law matter, contact Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.