Focus On

CUSTODY AND ACCESS - Considerations - Best interests of child - Maximum contact principle - Primary residence - Removal of child from jurisdiction

Friday, December 29, 2017 @ 8:22 AM  


Lexis Advance® Quicklaw®
Appeal by the father from an order permitting the mother to relocate with the child. The parties grew up in Pictou County, Nova Scotia. They never married. Their child, now age 11, was born in 2006 while the parents were in high school. The child's extended family resided in Pictou County. The parties co-parented the child while each pursued post-secondary education. In 2012, the mother sought to pursue midwifery studies in Ontario and relocate with the child. A joint custody and co-parenting arrangement was ordered to run in conjunction with the school year. The child resided with the father in Nova Scotia between September and April, and with the mother in Nova Scotia beginning each April following conclusion of the mother's studies. The order provided for extensive parenting time. Between 2012 and 2016, the parties continued to share parenting of the child. In 2016, the mother obtained midwife work in Toronto that paid $70,000 per year. She applied for permission to relocate with the child. In 2017, the trial judge concluded that the child should move to Toronto with her mother. The father appealed.

HELD: Appeal allowed. Displacement of a functional shared parenting arrangement required establishment that the proposed change was clearly in the child's best interests. The trial judge failed to take a balanced approach to each parent's proposed parenting scenario by focusing on the mother's circumstances to the detriment of the child's relationships in Nova Scotia. The trial judge failed to properly assess the full impact of the deleterious aspects of the move on the child. There was no indication that the present shared parenting arrangement did not serve the child's best interests. The mother was in a better position than the father to travel based on her work schedule, personal circumstances and superior income. The trial judgment dramatically reduced the child's contact with the father and extended family, contrary to the maximum contact factor. The trial judgment was set aside and replaced with an order that provided for primary residence with the father in Pictou County during the school year, specified access for the mother in Pictou County during the school year, and primary residence with the mother during the summer school break, subject to specified parenting time for the father.

D.A.M. v. C.J.B., [2017] N.S.J. No. 484, Nova Scotia Court of Appeal, M.J. Hamilton, D.P.S. Farrar and P. Bryson JJ.A., December 13, 2017. Digest No. TLD-December252017010