In a unanimous ruling, the appeal court issued a warning to courts of first instance that they must be cautious when weighing the “undeniable contribution” of expert’s opinions and bear in mind that “questions over custody and the criteria of who should have right to custody are issues that also call for legal notions,” said Quebec Court of Appeal Judge France Thibeault.
On May 2008, shortly after separating from her common-law spouse, the 32-year engineer sought custody of her two young children, and an authorization to move back to France with her children. But heeding recommendations made by a psychologist, Quebec Superior Court Judge Paul Corriveau ruled that it would not be in the interests of the children to move to France because being far away from their father would lead to instability and emotional upheaval. The lower court judge granted custody of the children to the mother but prohibited her from leaving the province with the children for a period of longer than four weeks. Judge Corriveau concluded that in the event that the mother decided to return back to France, the children would remain in Quebec in which case the father “would have the positive influence that the psychologist is hoping for.”
Informed by Gordon v. Goertz,  2 S.C.R. 27, the appeal court held that the decision of a custodial parent to live and work at a place of their choice is entitled to respect, except in well-defined circumstances that deal with the custodial parent’s parenting ability.
“In principle, it is in the best interests of children to maximize contacts with both parents,” said Judge France Thibault in the 13-page ruling. “It must however be recognized that the reduction of contacts with a parent does not constitute an obstacle that would prohibit the child to move. In this respect, the Supreme Court indicated that the fact the children will remain with the custodial parent, who is more able to take care of their best interests, compensates for the hardship arising from the removal of the non-custodial parent.”
According to Michel Tétrault, a Université de Sherbrooke professor and family law expert, the ruling now places a greater onus on non-custodial parents to demonstrate that a move would be detrimental to the best interests of the child. Indeed, the appeal court examined 19 cases since the landmark SCC ruling that dealt with a custodial parent’s decision to move, and it noted only five were rejected.
“By pointing out that moves were rejected only in cases involving bad faith, the ruling by de facto creates a greater burden of proof on non-custodial parents and puts greater pressure on courts of first instance to follow jurisprudence,” observed Tétrault.
“Even if there is not a legal presumption in favour of the custodial parent, as Gordon v. Goertz has always been interpreted, generally a move proposed in good faith by a custodial parent will be authorized. With this ruling, the Quebec Court of Appeal states there is no legal presumption in favour of the custodial parent but refusing an authorization is the exception. That is an important distinction to make.”
The appeal court found that the mother’s decision to move to France was not a caprice. It was not taken to restrict or prevent the father from seeing his children. On the contrary, the mother made a commitment to take measures that would enable the father to see his children in France, even going so far as to pay half of the travel and lodging costs.
“The judge of first instance cannot prohibit the appellant from moving to France, if she insisted,” said Judge Thibault. “The only alternative then was to hand custody of the children to the father. The objective of the judge of first instance would have then been achieved, that is maximizing contacts with the father, but at an unacceptable price. In effect, the custody of the children would have been confined to the respondent, which would not have been in their best interests.”
The appeal court added that even though the case at hand involves an initial application for custody, the guidelines established by the SCC in Gordon v. Goertz still apply, albeit with necessary adaptations. In assessing the best interests of the child, courts of first instance should consider, inter alia: the relationship the child has with their parents, the desirability of maximizing contacts between the child and the parents, the views of the child, and the disruption to the child arising from removal from his milieu.
That is a finding that Maryse Carrier, a Quebec City lawyer representing the father who has given her instructions to file for an application for leave to appeal, intends to raise before the SCC, if the highest court decides to hear the case.
“At the moment that the mother asked to move to France with the children, she did not have custody,” points out Carrier. “The facts are different from the Gordon v. Goertz case. This case involves an initial application for custody and not a change in the custody. We believe therefore that different criteria should be applied.”
Isabelle Perrault, a Quebec City lawyer who represented the mother, declined to comment given that an application for leave to appeal will be filed shortly.
This story was originally published in The Lawyers Weekly.