Q: Our friend married for the first time in his early 40s. Prior to marrying, he signed a prenuptial agreement with his bride-to-be. They also agreed that their long-term goal was to sell the farm and move to another location.
Since marrying they have had a child. Now the wife indicates that she has no interest in moving and wants to remain in the community. Our friend still wants to move. If they separate, he wants to know how custody can be resolved.
A: If they separate, hopefully they can agree on custody, which can include joint parenting, visiting rights and support. Today in law, the assumption is that both parents have equal rights to custody. If they cannot resolve this themselves, one or both can start court proceedings to determine custody and access. Often such proceedings are part of the divorce action. However, matters relating to custody, access and support can be dealt with by a court even if there is no divorce action.
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A settlement agreement between the parties can include a provision that the custodial spouse not move without adequate consultation with the other spouse. Equally, a court can place restrictions on the custodial parent such as providing notice of such plans in advance.
In a 1996 Supreme Court case, G vs. G, the mother had been granted custody with no restriction on her mobility. She then sought to move to Australia. The father went to court asking that either he be granted custody, or that the mother be restrained from moving. Both the court hearing the application and the Court of Appeal denied his application, though they did allow him generous access in Australia. The Supreme Court upheld the order, although it made a change to allow the father to have access to his child in Canada and provided that both parents should share the cost of sending the child to Canada to visit her father.
The court said the best interest of the child should be the first and foremost consideration in deciding custody. In making its decision the court noted the following points: the custodial parent’s motive for moving is not relevant, unless the move is solely to frustrate the other parent’s access rights; custody is granted to one parent for particular reasons and a move does not mean those reasons have changed; an award of custody includes the right to make decisions about upbringing, including a right to decide where to live; limitations on the rights of the custodial parent should not be imposed as a matter of routine, but only where required in the best interests of the child; it is unrealistic to expect people, including custodial parents, to never move; and changing custodial parents will be more disruptive for a child than moving.
In the last year, draft legislative changes were introduced in Parliament, but died on the order paper. The government of Paul Martin will have to decide whether to proceed.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only.
