Ottawa Citizen
Saturday, November 23, 2002

Court says mother can move with son

Cristin Schmitz
The Ottawa Citizen

Earl Creighton, like many separated fathers, tries to be there for Robert, his six-year-old son. He takes him to swimming lessons, reads to him, and visits the boy several times a week.

That close relationship will change as a result of an Ontario Court of Appeal decision this week that permits Mr. Creighton's ex-common-law partner, Charlotte Bjornson, who has sole custody of Robert, to move their son 3,000 kilometres from Waterloo, Ont. to Calgary.

Ms. Bjornson asked the court to let her return to Alberta where she has family support and can resume a nursing career with 12-years' seniority that she interrupted when she moved to set up house with Mr. Creighton in 1996.

In a unanimous judgment Tuesday that will help custodial parents (usually mothers) who want to move with their children over the objections of non-custodial parents (usually fathers), the appeal court overturned a trial judge who had refused to permit Ms. Bjornson to move Robert because it was in the child's best interests "that he continue to have a close and loving relationship with each of his parents."

The court held that the lower court over-emphasized the child's frequent contact with his father while not placing enough weight on the child's right to live with a "well-functioning and happy custodial parent."

The trial judge failed to give "due regard to the relationship between the quality of the custodial parent's emotional, psychological, social and economic well-being, and the quality of the child's primary care-giving environment," justices Allan Austin, Karen Weiler and John Laskin ruled.

The appeal court stressed the integral relationship between a child's best interests and the emotional and economic welfare of that child's primary caregiver.

Disputes over "parental mobility" are a fast-growing area of litigation since many custodial parents typically wish to move so they can join new partners, or because they (or their new partners) have new jobs and/or better economic prospects elsewhere. "These are the largest single group of contested custody cases," said University of Dalhousie law professor Rollie Thompson of Halifax. "These are cases that we can't settle quite often."

According to Ms. Bjornson's lawyer, Deidre Smith of Toronto, "the court is saying the child spends most of its time with its custodial parent, and protecting the environment in which the child is parented is more important than protecting the amount of time that a child spends with an access parent."

Non-custodial parents will now find it harder to successfully oppose their children's relocation, she predicted.

Mr. Thompson said that in recent years many trial judges have refused to allow mothers to move children away from their fathers, citing the Divorce Act's "maximum contact" principle which says children should have as much contact with each parent as is in their best interests.

"This is four cases in a row from the Ontario Court of Appeal in which they said a mother may move despite the fact that the lower court said 'no'," Mr. Thompson said.

Mr. Creighton's lawyer, Anthony Keller of Waterloo, said his client "is devastated by the decision."

"The court appears to have based its decision largely on the welfare of the mother," he said. The judgment leaves Mr. Creighton with a hefty legal bill. In addition to his $27,000 in legal costs for defending Ms. Bjornson's appeal, the court ordered him to pay her costs of $23,000.

The court of appeal said Ms. Bjornson had only been able to find part-time work as a nurse -- she has since found a full-time job -- with irregular hours, in the Waterloo area. This had left her financially dependent on Mr. Creighton. The psychological, financial and other benefits of the move included improving her hours of work so she could spend more time with Robert.

"In this case, the child's best interests are better served and better achieved by a well-functioning and happy custodial parent operating at her full potential," Justice Austin held.

"She also does not have the support of her friends and family which is beneficial, if not crucial, to raising a child as a single parent."

© Copyright 2002 The Ottawa Citizen