Notes on 3.8 Divorce Law

Access and Mobility Rights

• General Principles of Access:

  • When one parent is granted sole custody of the children, courts usually award access, or visiting rights, to the other parent.

  • Access to a child by the non-custodial parent is generally considered to be in the child's best interests.

• Rights of the Non-Custodial Parent with Access:

  • Time Allocation: The right to spend time with the children during specific periods, such as weekday evenings, weekends, and on special occasions, including birthdays and major holidays.

  • Information Rights: The right to receive information regarding the children's health, general well-being, and academic progress in school.

  • Notice of Relocation: The right to receive advance notice of at least one month if the custodial parent intends to move.

• Rights of Third Parties:

  • Grandparents may apply for an access order to maintain contact with their grandchildren.

  • Problems can arise with grandparent access if they conflict with one or both of the parents.

• Restrictions and Denial of Access:

  • Access might be strictly controlled or completely denied if a judge determines that a child might be harmed emotionally, physically, or morally by a parent.

  • These situations are statistically rare.

  • Specific Example: A parent who smokes in the presence of a child whose health is severely affected by asthma.

The Three Types of Access Orders

• Reasonable Access:

  • Definition: The non-custodial parent's right to regular visits with the child.

  • Characteristics: This arrangement is flexible. It occurs when parents work out an acceptable agreement between themselves. It is generally preferable to have access strictly outlined because it relies on cooperation between the spouses.

• Defined Access:

  • Definition: A schedule that outlines precise visitation between a child and the non-custodial parent.

  • Characteristics: This specifies exact times, such as periods after school, specific weekends, special occasions like birthdays, and major holidays (including summer holidays).

• Supervised Access:

  • Definition: Visitation between a child and the non-custodial parent that is supervised by a third party.

  • Characteristics: This involves a specified time spent in the presence of a supervisor to ensure the child's safety.

  • Triggers for Order: This may be ordered if the parent has a history of violent behaviour or is addicted to drugs or alcohol.

Mobility Rights and Relocation

• Context of Mobility:

  • As families separate more often and society becomes increasingly mobile, the issue of mobility rights is frequently brought before the courts.

• Rights of the Custodial Parent:

  • The custodial parent has the right to move to another location with the children, even if it is away from the non-custodial parent, provided the move is reasonable and in the child's best interests.

  • Canadian courts have ruled that the rights of the custodial parent to create a happy home environment may be viewed as greater than the access rights of the non-custodial parent. The principle applied is that what is good for the custodial parent is often presumed to be good for the children.

• Common Reasons for Moving:

  • Planning to marry someone who resides in a different location.

  • The desire to return to a former community to be near friends and family.

  • Employment transfer by a current employer.

  • The pursuit of better job opportunities.

  • Experiencing serious problems or conflict with the non-custodial parent.

• Reviewability of Orders:

  • Access orders and custody orders are always open for review if life conditions change significantly.

Case Study: Hartwick v. Stoneham, $2000$ CanLII $22522$ (ON S.C.)

• Background:

  • Joseph Hartwick and Allison Stoneham lived together briefly before their son, Brandon Stoneham, was born in February $1991$.

  • The couple never married and did not cohabit after the birth of the child.

  • In June $1994$, they signed a separation agreement granting custody to the mother.

• Initial Access Agreement:

  • The agreement provided increasing access for the father until he could enjoy $9$ hours every other Sunday, provided it was in the child's best interests.

• The Conflict:

  • In September $1999$, when Brandon was $8$ years old, the mother terminated access visits.

  • The mother claimed Brandon asked not to visit because his father took little interest in him.

  • Brandon expressed that he was "getting too old to go there" and was no longer interested in the activities proposed by his father.

  • A psychologist reported that the father did not ask about Brandon's school, friends, or sports, and did not attend his soccer or hockey games.

• The Application:

  • Hartwick claimed his visits were rushed and dictated by the mother (a claim Stoneham denied).

  • Hartwick filed an application to restore his access rights.

Case Study: Gordon v. Goertz, $1996$ CanLII $191$ (S.C.C.)

• Parties and Context:

  • Robin Goertz (father) vs. Janet Gordon (mother).

  • Location: Saskatoon, Saskatchewan.

  • Child: Samantha, aged $7$.

• The Move:

  • Janet Gordon, who had permanent custody via a mediated divorce agreement, planned to move to Australia to study dentistry.

  • Both parents maintained a warm and loving relationship with the child; the father previously had generous, reasonable access.

• Legal Proceedings:

  • Goertz sought a court order to prevent the move; Gordon cross-applied to move with the child.

  • The trial judge dismissed the father's application and allowed the mother to move.

  • The judge granted the father generous access to visit in Australia, contingent on one month's notice.

  • The mother and daughter relocated in $1995$.

  • The Saskatchewan Court of Appeal dismissed the father's further appeal.

• Supreme Court of Canada Ruling:

  • The appeal was heard in December $1995$.

  • The judgment was delivered in May $1996$.

  • The Supreme Court dismissed the father's appeal in a landmark $\frac{7}{2}$ judgment.

• Established Principle from Gordon v. Goertz:

  • Every case involving mobility must be decided based on the best interests of the child.

  • Courts examine the impact of the move on the children rather than focusing solely on the custodial parent's needs.

  • Courts consider changes in the lives of all parties since the original order (e.g., if a father has remarried and the child could fit into a new family unit, it might be better for the child to stay with the father).

Questions & Discussion

• Hartwick v. Stoneham Discussion:

  • How much consideration should the judge give to Brandon's comments and feelings, and why?

  • Do you think the judge restored custody? Why or why not?

• Gordon v. Goertz Discussion:

  • When these parents separated, what benefits would family mediation provide them?

  • Why do you think all the courts ruled in the mother's favour?

  • Were the courts wrong in allowing the mother to move with Samantha to Australia? Why or why not?

  • What principle was established with this decision?

• Mobility Rights Reflection:

  • If your custodial parent planned to move and take you along, which of the reasons (marriage, job, family, etc.) do you think would be the most important? Why?

  • Should you have the right to decide whether you want to go or remain with your other parent? Explain.