An interesting case was brought before the Ontario Court of Justice on the issue of relocation on a temporary basis. In Boudreault v. Charles, 2014 CarswellOnt 7523 (Ont. C.J.), the mother moves to relocate to Montreal with her 3 year old child by way of an interim motion. It is not without doubt that she has a compelling case. The father has been convicted of assaulting the mother while she was holding the child. He has only had supervised access visits with the child. To add to this, he is in great default of child support and a costs order.

A diligent review of case law shows that this is certainly not the first time this issue has been brought before the courts. For example, in Plumley v. Plumley, 1999 CarswellOnt 3503 (Ont. S.C.J.) the court set out the follow principles on relocating with a child:

a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.

b) There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.

c) Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

Taking Plumley and other leading cases into consideration, Justice Sherr in Boudreault states that the court must also consider the best interest factors set out in subsection 24(2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24(3) and (4) of the Act.[1]

At paragraph 29 of his decision, Justice Sherr comes to the conclusion that the trial result would be inevitable and that it is in the child’s best interest to move with the mother to Montreal at the end of the child’s school term. Justice Sherr finds that the advantages of the mother and child moving to Montreal clearly outweigh the disadvantage of any loss of contact with the father. Further, Justice Sherr boldly asserts in paragraph 31 that the mother will likely be a happier and better-functioning parent in Montreal. This will benefit the child.

            A careful reading of Justice Sherr’s decision reveals that at the forefront of mobility issues is the child’s best interest. Justice Sherr does not make the assertion that a happy parent equals a happy child,[2] but rather implies that it is a side effect of his decision. However, not all cases are alike and although both the mother and child in this case will be better off with the relocation, conflicting jurisprudence shows that this delicate issue is one that is decided on a case by case basis.


[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.

Past conduct

(3)  A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4)  In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).

In addition to the Act, Justice Sherr mentions the importance of considering the leading authority on mobility cases, Gordon v. Goertz,1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.). The law is summarized in paragraphs 49 and 50 of that case.

[2] This notion was heavily doubted in Berry v. Berry, 7 R.F.L. (7th) 1 (Ont. C.A.) and Bilopavlovic v. Bilopavlovic, 2008 CarswellOnt 2649 (Ont. C.A.).


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