Mobility Application: Berry v. Berry

The matter of Berry v. Berry was heard by the Court of Appeal for Ontario on October 17, 2011.  The issue at hand was a mobility application and how it affected a custody and access arrangement between the spouses.  The father, Mr. Berry, was appealing the decision of the Superior Court of Justice, dated October 20, 2010.

The parties were married for 10 years and had a three-year old son when they separated in 2010.  Their son has several health issues and has been diagnosed with Noonan’s Syndrome.  There was no contention between them about the other’s parenting abilities and most of the issues stemming from their separation were handled amicably.

When she filed for divorce, Ms. Berry also brought an urgent motion seeking permission to relocate, permanently, with her son, to Kingston, Ontario (from Toronto, Ontario).  The motion was adjourned, and then once heard, it was denied, and Justice Kelly determined that the mobility issue should be dealt with at trial.

In the interim, a rotating ¾ day parenting schedule was agreed to by the parties and Ms. Berry moved to Kingston.  Once the trial came about, the only issue left to be decided was Ms. Berry’s mobility application.

The leading authority on this issue is the case of Gordon v. Goertz, where the Supreme Court of Canada determined that the key consideration is determining what the best interests of the child are, from a child-centred perspective.

The factors to be considered before reaching a conclusion regarding the best interests of the child are as follows: the status quo; maximizing contact between the child and both parents; the views of the child; the parent’s reason for moving; and disruption a move would cause for the child, both in terms of a change in custody and where schooling, family, and community involvement are concerned.

The trial Judge ruled that it would be in the child’s best interests to reside primarily with Ms. Berry in Kingston and Mr. Berry’s access time was limited to alternating weekend from Thursday at 5:00p.m. to Sunday at 5:00p.m.

Justice Juriansz, for the Court of Appeal, believed that the trial Judge was correct in identifying Goertz as the leading case on this subject, but that he proceeded to apply its principles improperly, most notably, the maximum contact principle.  The trial Judge’s focus was on the mother’s reason for moving and not enough importance was placed on the father’s ability to spend time with his son if Ms. Berry moved to Kingston with their child.

Justice Juriansz also disagreed with the notion that a move to Kingston would not impede on Mr. Berry having “regular contact” with his son.  Going from seeing his father 50% of the time to seeing him only every other weekend would be too drastic a change for the child and not one that is in his best interests.

While Justice Juriansz acknowledged that being around extended family is important for individuals going through a separation, and their children, he went on to determine that on these particular facts, the mother’s reasons for moving should not usurp the maximum contact principle, nor are the reasons significant enough to warrant changing the status quo in such a monumental fashion.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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