In Decaen v. Decaen, the Ontario Court of Appeal upheld a trial judgement granting sole custody of 8-year-old twins to a mother on the condition that she relocate from Mississauga, Ontario (where she was living) to Sudbury, Ontario (where the children were living).

The parties resided in Sudbury during the marriage and the mother was the primary caregiver of the children.  After separation the mother moved to Mississauga with the parties’ 18 year-old daughter, but the father did not allow the twins move.

The mother applied for sole custody and an order allowing her to relocate the twins to Mississauga. The father applied for joint and shared custody and an order requiring the twins to remain in Sudbury.

The judge trial concluded that it would be in the children’s best interests to remain in Sudbury.  He granted sole custody to the mother on the condition that she returns to Sudbury, and if the mother decided to remain in Mississauga the father would have sole custody. Both parents appealed.

Neither party objected to the relocation condition in the custody order; both parents argued that the order should be set aside entirely, and each parent sought the relief he/she originally asked for at trial. In a jointly-written decision by a 3-judge panel, the Court of Appeal dismissed both parents’ appeals and upheld the trial decision.

By deciding to uphold the trial judgement in Decaen,  the Court of Appeal accepted (at least tacitly) that judges in Ontario can make custody orders that are conditional on a parent’s willingness to relocate, and this decision of the Court of Appeal is very noteworthy.

While section 16(10) of the Divorce Act  empowers judges to “impose any terms, conditions, and restrictions” on custody orders that they see “fit and just”, case law indicates that judges rarely use this discretion when making custody orders. In mobility cases, judges do  restrict a parent’s ability to move to another jurisdiction (by prohibiting that parent from relocating with a child to another jurisdiction.  It is very uncommon to see orders that place a positive obligation on a parent to move to or from a jurisdiction as a prerequisite to being awarded custody of a child.

The Nova Scotia Court of Appeal has found that requiring a parent to relocate as a condition of custody is permitted but unusual, and such orders should only be made in rare circumstances when it is the children’s best interests (see Reeves v. Reeves and MacRae v. Hubley). In contrast, the British Columbia Court of Appeal found  that courts “do not have the power to dictate where a parent must live, even if the result would be in furtherance of the best interests of the children.” (see Stav v. Stav).

The trial judge’s order in Decaen did not explicitly compel the mother to relocate to Sudbury, however in light of the mother’s interest in sole custody of the children, it could be argued that the actual effect of the order was compulsory from her perspective. It will be interesting to see how this decision will be used and interpreted in  future mobility (and custody) cases in Ontario.

In addition to raising an interesting point of law about conditions of custody, the Court of Appeal’s decision contains a helpful analysis of mobility issues and helpful comments about the weight that should be  accorded to children’s wishes in custody disputes. The mother in Decaen argued that the trial judge did not conduct a proper analysis of the children’s best interests with respect to mobility, and that he did not give sufficient weight to evidence that the children wished to relocate to Mississauga.

In finding that the trial judge properly conducted his analysis, the Court of Appeal cited the leading case on parental mobility, Gordon v. Goertz, [1996] 2 SCR 27:

[23]       In Gordon v. Goertz, Justice McLachlin (as she then was), writing for the majority, identified a number of factors relevant to a child’s best interests in the context of possible relocation:

(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.

[24]       At para. 50 of Gordon v. Goertz, McLachlin J. stated that, “[i]n the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community.

In dismissing the mother’s argument with respect to the children’s wishes, the Court of Appeal listed the factors that are relevant to such a determination:

[42]        In assessing the significance of a child’s wishes, the following are relevant:

(i) whether both parents are able to provide adequate care;
(ii) how clear and unambivalent the wishes are;
(iii) how informed the expression is;
(iv) the age of the child;
(v) the maturity level;
(vi) the strength of the wish;
(vii) the length of time the preference has been expressed for;
(viii) practicalities;
(ix) the influence of the parent(s) on the expressed wish or preference;
(x) the overall context; and
(xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.

It is apparent that the trial judge considered all of these relevant factors.