National Post

Monday, January 27, 2003

Court backs fathers' custody rights

Overturns lower court

Jake Rupert
Ottawa Citizen

A recent Ontario Court of Appeal ruling in a "parental mobility" case is good news for fathers and strengthens the concept that joint custody means an equal role in the lives of children, says the lawyer for the father in case.

The ruling overturns a lower court ruling by an Ottawa judge that allowed a woman to move her children from Ottawa to Cornwall, Ont., even though her former husband had joint custody.

"The ruling says courts must take into account the nature of the time a father spends with his children and the specific custodial arrangement," said the man's lawyer, Katherine Cooligan. "There is not an automatic presumption that mothers can move away."

The case pitted Silvie Michelle Sabourin Young against her former husband, Darren Ward Young. They were married for eight years before splitting in 1999.

In December, 2001, a settlement gave the pair joint custody of their three boys, Miguel, 8, Christophe, 6, and Thomas, 4.

Under the agreement, the boys spent 60% of the time with their mother and 40% with their father.

Ms. Sabourin Young, a teacher, had been looking for work in Ottawa, but could not land a full-time job. In April, 2002, she found such a job an hour away in Cornwall, moved there and brought an application to move the children with her.

Mr. Young, with whom the boys lived after their mother moved, opposed the application. In October, 2002, after a hearing, Ontario Superior Court Judge Robert Smith granted Ms. Sabourin Young's request to move the boys and ordered the father be given "liberal and generous access" to his sons.

In his ruling, the judge concentrated on the benefits of Ms. Sabourin Young's new job.

Mr. Young appealed and Ms. Cooligan argued his case in November before a panel of three judges. In a unanimous decision released last week, the court agreed Judge Smith made serious mistakes when granting Ms. Sabourin Young's request.

"One effect of granting Ms. [Sabourin] Young permission to move to Cornwall with the children is to remove Mr. Young as a custodial parent, and thus to undermine the co-parenting arrangement," appeal court Judge John Laskin wrote on behalf of the panel.

"Mr. Young will become an access parent, and the children will no longer benefit from his co-parenting. This consideration should have been factored into the assessment of whether the move to Cornwall was in the children's best interest."

The judges also said Judge Smith should have explored other options before granting the move.

However, instead of saying Ms. Sabourin Young could not move the boys, Judge Laskin set aside Judge Smith's ruling and ordered a new hearing.

The case is important because a series of recent high court rulings in mobility cases, where one parent (usually the mother) wants to move, have granted that right.

In most of these cases, the mothers have had custody and fathers had access rights.

"There's almost an air of despair in family law around the fact that the father rarely wins," said family law specialist Bob Montague. "This ruling bolsters fathers' custody rights, particularly in cases where there is joint custody. It's important because it shows that as a joint parent, they have real joint rights."

Mr. Montague says the ruling sends a message to trial judges that when they examine whether a move is in the best interests of the children, they must ensure all factors are examined, including the relationship between the children and the parent who is not moving -- generally the father.

Ms. Cooligan says the case shows there is no fixed formula to determining if a parent should be allowed to move the children, and each case should be examined on its own merits.

"One of the factors that has to be looked at is the nature of the time a father spends with his children," Ms. Cooligan said.

Burke Doran, Ms. Sabourin Young's lawyer at the court of appeal, said the ruling is a departure and puts a much heavier burden on lower court judges.

"The appeal court said the judge below should have really gone through all of the factors in much, much more detail," he said, adding the ruling could lead to many more cases going to the court of appeal when one party thinks the reasons provided by judges aren't as detailed as required.

Ms. Cooligan said it is unclear whether Ms. Sabourin Young will renew her application to move the boys.

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