Fiduciary ResponsibilitiesMarch 17, 2012
How to Guide Your Business Through a DivorceMay 19, 2012
One of the more difficult situations that separated or divorced parents sometimes face is when one of the parents decides that they must move away from the city of Medicine Hat and proposes to take the children with them. The moving parent often feels as though they have no choice but to move. Perhaps they are getting remarried, or need to upgrade their education, or have the possibility of a much better job, or perhaps it is just that their support network is somewhere else. Whatever the reason, the parents are now faced with the decision of whether the children will move, or whether they will remain in Medicine Hat with the parent who is not moving. In the case of Gordon v. Goertz, the Supreme Court of Canada gave us some guidance as to what factors we should consider when deciding if children will stay or go.
The first factors that the Court says we must consider is the effect that a move will have on the children’s relationship with each of their parents. The relationship between children and their parents are among the most important relationships for children. As a result, significant changes to these relationships must be seriously considered.
The Supreme Court has also indicated that we must take into account the desirability of maintaining the maximum contact between the children and both parents. There is a great deal of research that shows us that children of divorce are more successful when they have a good relationship with both of their parents.
The Court will also take into account the views of the children, to the extent that they can be determined. This is sometimes more difficult that it seems. When children are very small, often their views cannot be determined, or they may want to live with the parent who has the most toys. Whether the children are younger or more mature, the parents should not be seeking to determine their wishes without outside help. A child psychologist will be able to delve into the children’s wishes, without the child feeling as though they must choose between their mother and their father.
Another factor that the Court has directed us to consider is the disruption to the children of either a change in which parent they live with or a removal from the community in which the children currently live. In essence this often comes down to a determination of whether it will be more difficult for the children to live in a different household, or to move to a new community.
The Supreme Court has indicated that the reason the parent is proposing to move is not one of the factors that can be considered when making this decision. Indeed, the Court must only look at that reason if it is directly related to the parent’s ability to meet the children’s needs. The Supreme Court has also indicated that lower Courts cannot ask the moving parent whether they will still move if the children do not move with them. This question puts the moving parent in an impossible situation. If the parent answers that they will move without the children, then the other parent will argue that they are self-centered and not looking out for the best interests of the children. If they say they will not move, then the other parent argues that they are not serious about the move and should be prevented from moving.
The question of whether a child should move or stay when one of the parents is moving is a very difficult one for the parents and for the Court. The decision can often be a heart-wrenching one, not only for the children and the parents but for their extended family as well.