How has the court considered mobility in a custody determination?

Prince Edward Island, Canada


The following excerpt is from B.(R.) v. P.(D.), 2009 PECA 12 (CanLII):

On first reading, it is difficult to discern whether the trial judge was approaching the case from a maintenance of the status quo (and that was the children living in Quebec) or looking at the matter as a fresh inquiry with the issue of mobility at the forefront. The trial judge made little reference to the provisions contained in the Divorce Act. Most notably, he did not refer to s. 16(8) which sets out the factors for consideration in determining the best interests of the child. The trial judge, did however, refer extensively to the principles enunciated in Gordon v. Goertz ,supra. Nonetheless, in my assessment the trial judge did properly assess custody based on the application of the proper test of considering only the best interests of the child, by reference to the condition, means, needs and other circumstances of the child. The reasons for judgment demonstrate that the trial judge appreciated the factors to be considered, understood the proper application of the summary in Gordon v. Goertz, supra to the assessment of custody, and employed that assessment to consider custody and mobility in an initial custody determination. The trial judge identified the unique circumstances of the case, and how those circumstances affected each of the children. His focus was on the best interests of the children, not the interests and rights of the parents. He listed the factors for consideration directed by Gordon v. Goertz, supra, and then stated his observations about each of them in the context of the evidence at trial. Upon reading the judgment, the assessment by the trial judge was thorough and the conclusion was supported by the evidence and was reasonable.

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