This case concerned the ability of custodial mothers to relocate with their children, and the meaning of the best interests of the child.
LEAF intervened before the Supreme Court of Canada.
Janet Gordon and Robin Goertz lived in Saskatoon until they separated in 1990. Ms. Gordon was granted full custody of their daughter, and later decided to move to Australia to study orthodontics. Mr. Goertz applied for custody or, if not granted custody, an order saying Ms. Gordon could not move their daughter out of Saskatoon. Ms. Gordon applied for a variation to the custody order allowing her to move their daughter to Australia. The judge allowed Ms. Gordon to move their daughter to Australia, but said that Mr. Goertz would have liberal and generous access to be exercised in Australia only. The Court of Appeal upheld the decision. Mr. Goertz appealed to the Supreme Court of Canada.
LEAF argued that custodial mothers must have the right to relocate their children without the father’s right to convenient access. The Court needed to interpret the Divorce Act’s custody provisions so as to promote substantive equality, taking into account:
- The gender-based division of labour before separation, and women’s post-separation custodial responsibilities
- The impact of women’s pre-separation roles on their ability to support themselves and their children after separation
- The particular difficulties for single mothers in caring for themselves and their children
LEAF also argued that the custodial parent was in the best position to determine the child’s best interests, and that the best interests of the child are linked to the well-being of the custodial parent. As a result, the concept of the best interests of the child needed to be interpreted in a manner consistent with the constitutional goal of promoting women’s equality.
The Supreme Court allowed Ms. Gordon to move with their daughter to Australia, but extended Mr. Goertz’s access to Canada as well as Australia.
The court explained that parents applying for a change in custody or access orders must demonstrate a material change in circumstances affecting the child. Then, the judge must consider the best interests of the child, which is not the same as the interests and rights of the parents. To determine the best interests of the child, the judge should consider:
- Custody arrangement and relationship between the child and custodial parent
- Arrangement and relationship between the child and the access parent
- Desirability of maximizing contact between the child and both parents
- Views of the child
- Custodial parent’s reason for moving – only in exceptional cases where the parent’s ability to meet the child’s needs is relevant
- Change in custody’s disruption to the child
- Disruption to the child in relation to their removal from family, community, and schools
LEAF is grateful to Carole Curtis and Donna Wilson, counsel in this case, as well as Carole Brown, Ottawa agent for LEAF.
Download the factum here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].