Mobility Motions in Ontario

The Ontario Superior Court of Justice released Fifield v. Cochrane, 2015 ONSC 5363, on August 26, 2015, denying the mother’s mobility motion. This case is important to Ontario family lawyers because it affirms the analytical approach to mobility motions in Ontario.

Mom wanted to move the three young children an hour away to live with her mother. The separated parties lived in the same household, which the children grew up in, and this arrangement caused stress. The parties were roughly equal in parenting duties.

Mobility motions require an analysis of the children’s best interests as guided by the framework set out in Gordon v. Goertz [1996] 2 S.C.R. 27 at paragraph 49:

  • The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
  • The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
  • Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
  • The focus is on the best interests of the child, not the interests and rights of the parents.
  • The judge should consider, among other things:
  1.  the existing custody arrangement and relationship between the child and the custodial parent;
  2. the existing access arrangement and the relationship between the child and the access parent;
  3. the views of the child;
  4. 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;
  5. disruption to the child consequent on removal from family schools, and the community he or she has come to know.
  • Ultimately, the importance of the child remaining with the custodial parent in a new location must be weighed against the continuance of full contact with the access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new.

The Gordon v. Goertz framework led Mr. Justice Phillips to deny the mother’s motion. Although it made good sense for mother to bring the motion, ultimately granting the motion would cause too significant a disruption to the children. They were attached to their schools, friends, and community. Familiarity and stability was very important for the children in light of the disruption to their lives caused by their parents’ divorce. Also, the trial judge may re-assess the move and order the children to return to the original community. All told, it was in their best interest not to move.

Fifield v. Cochrane teaches Ontario family lawyers how to understand and approach mobility motions and evaluate the likely outcome of same with clients.

Jeffrey L. Hartman

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