Parties in mobility applications need comprehensive plans

By Paul Russell, Contributor

Recent amendments to the Divorce Act have to be taken into consideration when parents seek the court’s approval to relocate children, says Toronto family lawyer Michael Stangarone.

“The amendments reflect case law, clearly spelling out what both judges and counsel have to consider with mobility applications, says Stangarone, partner with MacDonald & Partners LLP.

He points to a recent Ontario Superior Court of Justice case, where the female parents of a four-year-old boy — one living in Niagara Falls, N.Y., the other in Niagara Falls, Ont. — each asked the court for sole custody.

The parents agreed that joint custody was not a possibility, court documents state, since “they cannot co-parent … they do not speak to each other.”

The judge prefaced his ruling by commenting on the difficulty of the task he faced.

“From all of the evidence that I have heard, it was evident that [the boy] has two loving mothers who want only the best for him … this makes the issue of where [he] should attend school, and what the arrangement for his custody should be, very difficult.”

Both mothers gave evidence to the court, the judgment states, outlining their plans for the boy’s education and how they envision accommodating the other parent in his life.

“At the end of the day, as with any mobility application, the sole consideration is what is in the best interests of the child,” Stangarone tells Advocate

After hearing evidence from extended family members on both sides of the border, the judge ruled in favour of the Canadian mother, noting she “has been meeting [the boy’s] needs, both emotional and physical. Very importantly, she has been doing this in a way that is very inclusive of [the other mother], ensuring that [she] is a part of that journey.”

“I thought this was a very well-reasoned decision, that took into consideration all the factors now enshrined in the amended Divorce Act,” says Stangarone, who was not involved in the matter and comments generally.

In the section dealing with “best interests of child,” the amendments list seven factors to be considered.

The top three are: “the reasons for the relocation; the impact of the relocation on the child; the amount of time spent with the child by each person who has parenting time … and the level of involvement in the child’s life of each of those persons.”

“Maximum contact is a mandatory consideration embedded in the Divorce Act,” says Stangarone. “You have to consider it, particularly in mobility cases where the child’s going to reside with one parent or the other.

After awarding sole custody to the Canadian mother, the judge ruled her access plans for the other parent were “insufficient,” before granting the American mother more weekend time with the boy.

Stangarone says he was successful in appealing a family law judgment where the judge failed to consider the principle of maximum contact for both parents.

With any mobility case, he says parties need to develop comprehensive plans that outline for the court why the move is necessary, and how the child’s needs will be met in the future.

“You have to show why it is in the best interest of this particular child to be relocated because the unfortunate reality is that the child is being taken away from one of their parents,” Stangarone says.

“These are tough cases because there’s no in-between, the judge is going to have to decide which plan is better for the child,” he adds.

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