Gordon v. Goertz: Mobility in Family Law Cases

Mobility issues arise where one parent wants to take the child or children and move away from the other parent.

The leading case on mobility where one party wants a change to child custody and access arrangements is Gordon v. Goertz. In this case, the Supreme Court of Canada summarized the applicable test as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of illustrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application conducts a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the parents to satisfy those needs.
3. This inquiry is based on the findings of the judge who made the previous order and based on evidence of the new circumstances.
4. The inquiry does not start with a legal presumption in favour of the parent who has custody of the child, although the custodial parent's views are entitled to great respect.
5. Each case is dependent on its own unique circumstances.
6. The focus is on the best interests of the child, as opposed to the interests and rights of the parents.
7. More particularly the judge should consider, among other things: the custody arrangement currently in place and relationship between the child and the custodial parent, the access arrangement currently in place and the relationship between the child and the access parent, the desirability of maximizing contact between the child and both of the parents, the child's views, the custodial parent’s reason for moving, only in the exceptional situation where it is relevant to that parent’s ability to meet the needs of the child, disruption to the child of a change in custody, and disruption to the child consequent on removal from family, schools, and the community he or she knows.

What is abundantly clear from the above-noted case law is that an assessment of a mobility case must be based on the best interests of the specific children involved, without a presumption in favour of either parent.