Court of Appeal of Quebec

Droit de la famille — 221551

Sansfaçon, Cournoyer, Baudouin

Appeal from a judgment of the Superior Court dismissing an application for relocation. Dismissed.

The parties were de facto spouses and have a seven-year-old son, X. The mother presented an application for authorization to relocate with X because she wanted to move in with her current spouse in another city. The trial judge found that it would be in the child’s best interests to award custody to the father.

The mother alleges, among other things, that the judge took into consideration the reasons for her relocation whereas, in Gordon v. Goertz (S.C. Can., 1996-05-02), SOQUIJ AZ-96111061, J.E. L., [2001] R.D.F. 467. 209 (res.), [1996] 2 S.C.R. 27, the Supreme Court stated that the reason for moving should be considered only in the exceptional case where it is relevant to the parent’s ability to meet the child’s needs.

While it does not apply to the facts of this case, the Divorce Act (R.S.C. 1985, 2nd supp., c. 3) is nonetheless central to the arguments of each party with respect to the factors to take into consideration to award custody of X. Several amendments were made to the Act in 2021. In particular, Parliament designed a specific framework applicable to relocations, as defined in section 2(1) of the Act. There are now additional factors to take into consideration to ensure the child’s best interests are respected, including the reasons for the relocation if they are useful to assess the situation. This marks a departure from the earlier case law based on Gordon. Even though that judgment remains relevant with respect to disputes instituted under the Civil Code of Québec (S.Q. 1991, c. 64), the principles it contains must be interpreted in light of the evolution of the notion of “the best interests of the child”. The Supreme Court’s position has also evolved over time to take into account, inter alia, unjustified reasons or bad faith meant to deprive the other parent of his or her rights or unduly restrict them. It is therefore necessary to adapt the scope of Gordon to the recent statutory amendments that in fact correspond more to the child’s best interests as this notion should be understood and applied today. Therefore, the judge did not err in law by taking into account the reasons underlying the mother’s decision to relocate.

Furthermore, the judge did not commit an error in his assessment of the evidence justifying the Court’s intervention. The judge sought to determine which parent should be awarded custody of X based on the parties new reality. The mother’s sudden plan and many uncertainties regarding her future life, combined with her reluctance to facilitate the exercise of the father’s access rights and the conflict of loyalty in which her conduct placed X explain the judge’s decision.

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