Gordon+c.+Goertz


 * Goertz v. Gordon [1996]**

- In first custody order, mother granted permanent custody of child and father received generous access. - Upon hearing that the mother intends to move to Australia, the father applied for custody of the child or an order restraining the mother from moving the child from Saskatoon. - Mother cross-applied to vary access provision to allow her to move the child’s residence. - At trial, judge granted mother’s application, relying upon the findings of the judge of the Divorce proceedings that the mother was the proper person to have custody of the child. He dismissed the father’s application, holding that the father could have liberal and generous access to be exercised in Australia only.
 * Facts:**


 * Issue:** Did the first judge err in permitting the child to move to Australia with the custodial parent?


 * Held:** Appeal allowed in part. The first judge was correct in continuing the mother’s custody in Australia, but not correct in restricting the father’s access to the child to Australia. Access to the child in Canada would make the father’s time spent with his son more natural and would allow the child to maintain contact with his friends and extended family.

__McLachlin:__ • Parent applying for change in custody agreement must meet the threshold requirement of demonstrating a material change in the circumstance affecting the child. To meet the threshold, the judge must be satisfied of (1) a change in condition, means, needs, or circumstances of the child or in the ability of the parents to meet the needs of the child, (2) which materially affects the child and, (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. • The burden of showing a material change in circumstance is on the applicant. • Where these requirements have not been met, the judge must assume the correctness of the initial order. However, where the threshold is met, the judge must embark on a fresh new discovery into the best interests of the child “by reference” to the material change in circumstances (s.17(5) Divorce Act). However, the inquiry is not confined to the change alone. It looks to all the factors bearing on the child’s interests (Note: difference with LHD). • The burden for demonstrating the best interests of the child is on both parents (Note: difference with LHD). • The new inquiry recognizes that the current custodial parents are owed a great deal of respect. However, there is no presumption in favour of either parent (Note: difference with LHD). • An inquiry into the best interests of the child considers, inter alia: (a) existing custody arrangements and the relationship between the child and the custodial parent, (b) the existing access arrangements 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, (g) disruption to the child consequent on removal from families, schools, and the community he/she has come to know. • The maximum contact principle (s.16(10) and 17(9) Divorce Act) is mandatory, but not absolute (as best interest reigns supreme). • The importance of the child remaining with the custody parent in new location is weighed against the continuance of full contact with the child’s access parent, extended family, and community.
 * Reasoning:** (Two different processes to end up at the same result)

__L’Heureux-Dube:__ • A custodial parent has the right to choose the child’s residence. The only way to change this right is for the access parent to request a change the custodial arrangement on the basis of a change in material circumstance (s. 17(5) Divorce Act). • When a change of circumstance is present, the court ought only look at the impact of the change on the best interests of the child (see s.17(5)). The court should not proceed to a de novo appraisal of all the circumstances of the child and parties. As such, the best interests of the child are presumed to lie with the custodial parent (Note: difference with McLachlin). • The court should only restrict the choices of the custodial parent in very exceptional circumstances. The attribution of custody to one parent carries along with it the presumption that such parent is most able to ensure the best interests of the child. • The material change in circumstance test was properly outlined in Willick. Once the threshold is met, a custody arrangement should only be varied where the alleged changes are of such magnitude as to make the original order irrelevant or no longer appropriate (Note: difference with McLachlin). • The burden to show that the change in proposed place of residence is detrimental to the child’s best interests is only on the access parent. The parent must demonstrate that the relocation of the child prejudices the child’s best interests and that the non-custodial parent’s relationship with the child is of such importance to the child’s best interest as to permit a change in custody arrangements. The burden only shifts to the custodial parent, where the previous agreement restricted the ability of the custodial parent to determine the residence of the child. In that case, the custodial parent must show that the decision to relocate is not made in order to undermine the rights of the access parent and that he/she is willing to make arrangements to restructure access with the non-custodial parent (Note: difference with McLachlin). • S.17(5) does not allow for variation orders to be decided by the discretion of the courts – there are strict substantive and procedural rules that must be met. //Applying the tests to this case:// • In this case, the change of residence of the child meets the threshold test of a change in material circumstance. However, because of the ability of both parties to arrange for the father to meet the child, there is no reason to change the custody arrangement. The judge erred in confining the father’s access rights to Australia – there is no evidence to support this restriction. • Given that it has only been 2 years since the original custody determination, the original custody arrangement remains highly relevant to all considerations of a child’s best interest.

The principles which govern an application for a variation of an order relating to custody and access are a two-stage inquiry. First, the party seeking variation must show a material change in the situation of the child. If this is done, the judge must enter into a consideration of the merits and make the order that best reflects the interests of the child in the new circumstances. __1) The application to vary custody cannot serve as an indirect route of appeal from the original custody order. The discretion of the original judge must be assumed to be correct. 2) When considering a variation order, the only thing that must be considered is the change in circumstances as it **alone** affects the best interest of the child.__
 * Ratio:**