DAVID RUSSELL Barrister & Solicitor

Audio and video recordings can be a source of reliable and trustworthy evidence. As stated by the Supreme Court of Canada back in 1996, these recordings may be a "silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events."  R. v. Nikolovksi, [1996] 3 S.C.R. 1197 at para. 28 

Given the ease of recording private conversations on our smartphones, courts can expect more litigants attempting to use these recordings in court. There are no bright line rules against the use of private conversations (see Mazur v. Corr, [2004] ABQB 753).

Family lawyers must familiarize themselves with the law surrounding surreptitious recordings to properly advise clients on the gathering and use of this evidence, particularly in high-conflict matters. 

S. 184(1) of the Criminal Code makes it an offence to knowingly intercept a private communication by electronic means, but there is an exception contained in s. 184(2)(a) if one party is consenting to the recording (known as one-party consent intercepting or participant surveillance, see R v. Schlatter, 2020 ONSC 402 at para. 47).

Notwithstanding the legality of recording a conversation that a litigant is a party to, recordings of private conversations of one's family members have been ruled inadmissible in family court proceedings: 

• From Justice Sherr of the Ontario Court of Justice in Hameed v. Hameed, [2006] OJ No 3109 at para. 11: "Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them." [emphasis added]

• Children may be embarrassed and hurt to learn that they were recorded for use in family law proceedings, damaging their relationship to the parent - DeGiorgio v DeGiorgio, 2020 ONSC 1674 at para. 32

• Video and audio recordings can be edited, manipulated, and even faked, raising issues of threshold reliability - DeGiorgio v DeGiorgio, 2020 ONSC 1674 at para. 27

This is not an exhaustive list, and there may be other policy considerations to be weighed, including whether the courts should admit evidence of private communications between married partners (see Shaw v. Shaw, [2008] ONCJ 130 at para. 18).

While public policy considerations generally favour exclusion of surreptitious recordings of family matters, there may be compelling reasons for the court to admit such evidence.

For example, recordings may reveal duplicitous conduct by one party. In the case of AF v. JW, [2013] ONSC 4727 the father introduced a surreptitious recording of the mother acting in a manner that was contradictory to a court order that required her to be supportive of the children's relationship with the father. The recording demonstrated that the mother continued to disparage the father in the children's presence. The court found that she was acting in a manner that was abusive and not in the children's best interest, a central issue in the proceedings. The court admitted the statements, noting at paragraph 56 that the goal of building trust after separation should not be used to mask abusive conduct which violated a court order.

Recordings have also been used in family law trials for the purpose of cross-examination of an expert witness. In D. v. D., 2020 ONSC 7449, Justice Shore permitted one party to introduce a surreptitious recording of a meeting between one of the parties (the father) and an expert witness who had been ordered to produce a s. 30 assessment for the court. This was only for the purpose of cross-examination to demonstrate that the assessor was biased against the father.  It should be noted that the trial judge had no issues with the reliability or authenticity of the recording for reasons stated at paragraph 12.

Conclusion: the ease of recording conversations with smartphones makes it a certainty that family law litigants will continue to record each other in hopes of gaining an advantage in court. In the absence of a compelling reasons to admit the evidence the courts have ruled that these recordings are inadmissible. The strategy of introducing recordings of private conversations into court has the potential to  backfire by demonstrating the willingness of one parent to betray the other parent's trust. When offered for a compelling reason, the recordings must be clear, authentic, and complete to be considered reliable. Fairness also dictates that the opposing party receive the recordings well in advance of any hearing to independently test its reliability.

The naming of a child establishes biological ties between the parents and the child. A surname often holds great significance, as it is creates familial bonds across generations. 

In Ontario, and elsewhere in Canada, a Mother can choose to not acknowledge the identity of the father when registering the child and choosing a name.  This is pursuant to s. 10(3)4. of the Vital Statistics Act. The unfairness of this provision was acknowledged in the Supreme Court of Canada case of Trociuk v. B.C.(A.G.), [2003] 1 S.C.R. 835. In that case the court was focused on the rights of fathers to participate in the naming process after birth under the Vital Statistics Act of British Columbia. Like Ontario, the BC Act gave the mother the arbitrary power to leave the father's name off of the birth certificate.

The Supreme Court concluded that allowing mothers to arbitrarily exclude fathers from the process violated the equality rights of fathers under s. 15(1) of the Canadian Charter of Rights and Freedoms.  In that case, it was in the best interest of the child to have the father included on the registration certificate and be involved in the naming decision.

It should be noted that some circumstances exist where it is both fair and reasonable for a father to be excluded in the birth registration process. These are situations where the father was abusive, threatening, or the child was a consequence of rape. These valid objectives of providing mothers the power to exclude fathers must be separated from situations where the choice to exclude Dad was arbitrary and unwarranted. 

The case of Trociuk is significant in that it acknowledges the equality of fathers and the importance of a child's name in establishing a genetic bond between father and child.* Justice Quinn of the Ontario Superior Court in the case of E.G. v. S.R., [2008] O.J. No. 2913, described the situation in the following terms:

• Para. 25 "The right of the mother to arbitrarily exclude the father in the naming of their child is a breathtaking example of sexual discrimination, leaving the father without recourse (short of the application launched) and rendering him a second-class parent."

In many of the cases dealing with the problem of "unacknowledged fathers", the court used its Parens Patriae jurisdiction to change the child's name by including the father's last name where it was excluded on the birth certificate. In Ontario, applications to change a child's name can also be brought under s. 17(1) of the Children's Law Reform Act after a declaration of parentage has been made. The test to be applied, in both instances, is the best interests of the child.

In the absence of evidence of abuse, abandonment, denial of paternity, or rape, the courts will generally approve a change of name where the father's name was excluded arbitrarily by the mother (see the case of Ryan v. Scott, (2011) ONSC 3277). This is based upon the importance of the child's surname affirming the biological ties between both parents whose status is presumed to be equal in the life of the child.

The best interests test, above, applies mainly to younger children who are too young to form a strong opinion on their name. Considerations for older children are certainly relevant but beyond the scope of this blog post. In addition to the age of the child and his or her relationship to each parent, the court may look at the names of siblings, whether child support is being paid, and other factors.  

A change of name can also be brought by the parent with "lawful custody" under the Change of Name Act. If more than one parent has lawful custody, the consent of that person is required. If the other person with lawful custody does not consent, an application can be made to dispense with that consent.

Lawful custody means de facto custody and does not require a court order. The parent with de facto custody is the one with physical care and control of the child, controlling their place of residence, and making decisions on educational, medical, and religious matters (see K.A.B. v. Ontario, 2013 ONCJ 684). 

It is important to understand that a name change is an incident of custody (see Felix v. Fratpietro, (2001) 13 RFL (5th) 545). The Change of Name Act leaves the access parent without a right to prevent the custodial parent from changing the name of the child in the absence of an agreement or court order that prevents them from doing so. The access parent must be given notice of the change, but there is little the access parent can do to prevent the change in the absence of a prior court order or agreement.  

If a parent is successful in changing the name of their child after obtaining an order of parentage under s. 17(1) of the Children's Law Reform Act, as described above, their consent is required by the parent with lawful custody under the Change of Name Act for a further name change. This is the case even if the parent is an access parent without lawful custody. 

The same situation does not appear to be the case where the court orders a change of name based upon the exercise of their Parens Patriae power. It would be advisable to have a judge include in the order a term that prevents further name changes. This would avoid having the custodial parent retaining the ability to change the name back pursuant to the Change of Name Act.  

As a final note, it is important to bring the application in the proper jurisdiction. Applications made under s. 17(1) of the Children's Law Reform Act or by asking the court to apply it's Parens Patriae powers must be brought at the Ontario Superior Court of Justice or Family Court. Applications under the Change of Name can be brought at the Ontario Court of Justice, Ontario Superior Court of Justice, or Family Court.

*I should note that my comments here apply only to biological fathers and not to couples who choose to have a child through surrogacy. It is not my intention to diminish or undermine the equality of surrogate parents.  

When it comes to cohabitation, the length of time matters. As your financial lives intertwine, a state dependency may be created. One partner may be entitled to spousal support if the relationship ends. Where one person controls much of the property or wealth, the other party may obtain a right to a portion of this property over time. This post will explore claims for spousal support and property claims in the context of unmarried partners living together.  

In Ontario, Part III of the Family Law Act (FLA) covers spousal support obligations. Unmarried couples will qualify as a "spouse" if they cohabit continuously for a period of 3 years. The 3-year minimum does not apply if the couple had a child together during the period of cohabitation. Here are some of the terms, defined: 

Cohabitation: this refers to a "marriage-like" relationship where two people live together. You may feel that you are simply sharing expenses in an economic arrangement, rather than living in a "marriage-like" relationship. You may also feel, in retrospect, that you were never totally committed to that relationship. However, if you were living under the same roof, sleeping in the same bed, eating meals together, sharing an expectation of fidelity, and participating in social activities together, the argument that you were not cohabiting with that person would likely fail. For a list of factors used to determine when a couple is "cohabiting" see paragraph 16 of the following case: Molodowich v. Penttinen, [1980] OJ No. 1904. 

Continuously: The cohabitation does not need to be uninterrupted to be considered "continuous."  If there is no intention to permanently separate, the cohabitation may continue even where one person leaves for a period of time. This can even occur even when one person lives in another country for a period of time, or one person has maintained a separate residence. A continuous period of cohabitation does not end until one person demonstrates, convincingly, that their mind has been made to end the cohabitation for good. 

If you have child with a person during the period of cohabitation, different rules apply. You will be considered a "spouse" if the relationship is one of "some permanence." No minimum length of cohabitation is necessary. The longer the relationship before cohabitation began the easier it will be to prove the relationship was of "some permanence." 

The law recognizes that individuals assume different roles in a relationship. When the relationship ends, support payments may be necessary to alleviate hardship or compensate the person who sacrificed their career to support the other partner. Even if you fall within the definition of "spouse" under part III of the Family Law Act, you may not be entitled to, or owe, spousal support. Click here for more information about entitlement to spousal support.

When it comes to property rights, married and unmarried couples stand on very different legal grounds. Parts I of the Family Law Act (FLA) sets out rules for dividing property after the breakdown of a marriage. Part II sets out special rules regarding the matrimonial home. These sections do not apply to unmarried couples.

Unmarried couples must rely on the "common law" which is a body of judge-made law dating back to England in the middle ages. Compared to married couples under the Family Law Act, the common law provides much less certainty for unmarried couples. Property claims can be made against real estate, investments or other items.  

It is important to understand the "give and take" nature of a relationship to understand when property rights may arise over time. The common law will reward someone for making valuable contributions to other individual's accumulation or maintenance of property if those contributions were not fully compensated.

A common example of this would be the unpaid provision of domestic services, such as home maintenance, cooking, or childcare. If one person is primarily responsible for these duties, they have enriched the other person without being compensated for doing so. 

This kind of imbalance - where one person takes more than they give - is called an "unjust enrichment."  Since cohabitation often provides mutual benefits for each partner, it is often difficult to identify an imbalance and determine what amount should be provided as compensation. For example, the person who provided domestic services may also have received free room and board.

The difficulty in quantifying these contributions has led to a flexible approach taken by the courts. The leading case of Kerr v. Baranow, [2011] 1 S.C.R. 269, from the Supreme Court of Canada provides guidance on this issue, at para. 81:

"...the basis of the unjust enrichment is the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the claimant's contributions to the joint venture and the accumulation of wealth. ... The monetary award should be assessed by determining the proportionate contribution of the claimant to the accumulation of wealth." [emphasis added]

So what is a "joint family venture" and why is it important? Under the Family Law Act, married couples are presumed to engage in a joint venture involving the pooling of resources and joining of efforts to achieve common goals. This is used to justify the splitting of accumulated gains during the marriage 50/50 after a separation.

Common law couples may be living in much the same manner by pooling their resources and working towards common goals. The law will recognize all contributions made by both partners and decide if one partner is retaining a disproportionate share of the wealth. In essence, the common law may treat unmarried partners the same, or similar to, married couples.

Unlike a married spouse, a common law spouse intending to make a claim against the other individual's property must provide proof of a "joint family venture". Some facts may include:

• Raising children together,
• A clear division of labour with one spouse attending to domestic responsibilities allowing the other to pursue paid labour in the workforce,
• Economic integration through joint bank accounts, sharing of expenses, etc.  

It is also important to look at intentions. If there was little accounting or concern about who paid for household items, bills, and other expenses big or small, the existence of a "joint family venture" can be inferred.

There may also be factors to suggest that the parties intended to keep their economic lives, and property, separated. Getting married is a choice, and staying unwed is also a choice. Where the intentions are clear to keep property rights in tact, the courts will defer to those intentions.  

As indicated earlier, both partners likely received some benefit from the cohabitation. If this is the case, the defendant may seek to have the claim reduced in proportion to the benefits received by the spouse making the claim.  

In addition, the parties may have come to an understanding, perhaps in the form of a cohabitation agreement, that there would be no claims to each other's property after separation.  Evidence of an agreement or a mutual understanding must be produced by the defendant. 

It should be clear by now that common law spouses are in a legal gray area when it comes to property rights. Two people may have very different hopes and expectations in a relationship. The legitimacy of any claim against property relies upon many subjective factors, such as each partner's intentions and expectations. Understanding your rights and obligations is a must to avoid any of the unintended legal consequences of cohabitation.  

Surrogacy refers to a process of assisted reproduction where a woman will carry a pregnancy for another person or persons who will then become that child's parent(s) after birth. This is a legal option for gay men in Canada and is governed by the Assisted Human Reproduction Act. The act specifically declares that Canadians seeking assisted reproduction procedures will not be discriminated against upon the basis of their sexual orientation or marital status.

For gay men, the most common practice for assisted reproduction is to find an egg donor and a surrogate who are two different women. The surrogate will then have no biological link to the child. The fertilization and gestational process is done by an in vitro fertilization (IVF) clinic. Various options exist to have the egg fertilized by the sperm of the intended parents. These options should be discussed with medical professionals.

In Canada, a surrogate must be willing to offer this valuable service in an altruist manner without compensation. It is against the law to be a surrogate in Canada for economic gain. The intended parents are only allowed to pay for the surrogate's costs such as medical expenses, lost wages, food, travel, and childcare. Couples wishing to pay a surrogate mother can explore options in the United States or internationally where these practices are legal. 

Businesses like Surrogacy in Canada Online or Canadian Surrogacy Options exist in Canada to assist with matching willing surrogates with intended parents. They also provide information and support during the entire surrogacy process. Total costs associated with the IVF method of becoming a parent are estimated at $60,000, according to the Surrogacy in Canada Online website.

For two gay male partners seeking to have a child using reproductive assistance, they will need to create a "surrogacy agreement" which is governed by s. 10 of the Children's Law Reform Act (CLRA). This agreement sets out the intentions of the intended parents and the surrogate. The intended parents and surrogate are required to sign the surrogacy agreement prior to conception. All parties must obtain independent legal advice. The child must also be conceived other than by sexual intercourse.  
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After the child is born, the intended parents must take steps to become the legal parents of the child. In spite of the surrogacy agreement, the surrogate is still considered the "birth parent" under the CLRA and must give consent to relinquish her right to become a parent after the child is born. This cannot be provided until after the child is 7 days old. According to a representative at Surrogacy in Canada Online, there has never been a surrogate in Canada who has fought to keep the babies they carry. Surrogates in Canada have a tradition of understanding and respecting the vital role they play in assisting families have a baby.

In the unlikely event that the surrogate does not provide her consent, a court application can be made to grant a declaration of parentage to the intended parents under the surrogacy agreement. A surrogacy agreement is unenforceable in law but the court will take the agreement into serious consideration in determining who should be the child's rightful parents.

On January 1st, 2017, Bill 28, or the All Families Are Equal Act, 2016, came into force. Gender neutral terminology was introduced to a number of pieces of legislation dealing with registration of parents and children. In addition, the CLRA was changed to provide clarity for parents seeking to use assisted reproduction to conceive a child. The process for the legal recognition of parents who use a surrogate was streamlined. The legislation is among the most progressive in the world, making Canada a leader in the recognition of the equal rights of same-sex parents.  

The majority of parenting plans or custody orders are entered into by way of agreement or on consent. During a divorce or separation, emotions are high. Pressure from the other side's lawyer, financial stress, and exhaustion may all contribute to a parent accepting a less-than-ideal parenting plan perhaps hoping that it can be changed at a later date. However, it is only where the original order or agreement is no longer working for the child that the court will step in to make changes. The courts will be reluctant to interfere with a child's routine for a plan that has not been tested. If you are going through a separation, it is important to put your best foot forward at the outset to ensure that the child will maintain a close relationship with you.

Keeping in mind that changing a custody or access order/agreement is not easy, they are not set in stone. Where the court finds that an agreement is no longer working for the child, it has an obligation to vary the agreement to meet the child's needs. This article briefly discusses the procedure for changing an access or custody arrangement and the legal grounds upon which these cases are decided.  

Forms 15, 15A, and 35.1 under the Family Law Rules Forms are required to bring a motion to change a custody or access order. To change an arrangement under a written agreement, you must bring an application using Form 8.

In order to make a change to a custody or access arrangement, you must satisfy three conditions. First, there must be a change in the condition, means, needs or circumstances of the child and/or the the ability of parents to meet the needs of the child. Secondly, this change must materially affect the child. Third, this change must not have been foreseen or reasonably contemplated by the original agreement or order. (Gordon v. Goetz, 1996 2 S.C.R. 27 at para. 13)

Without overcoming these threshold issues a court will have no jurisdiction to vary an order or agreement. However, there are a wide variety of circumstances that would amount to a material change in circumstances. If there is a finding that a material change has occurred, the court will go on to determine what order should replace the current one, based upon the best interests of the child as set out in s. 24 of the Children's Law Reform Act.

The following are examples of material changes in circumstances that can lead to a variation of a custody/access order:

• Passage of Time: this is not a material change of circumstances in and of itself. However if the order or agreement was made to address the needs of a very young child, a material change will occur as the child ages and their needs change. Older children are emotionally stronger and can tolerate longer periods away from each parent. School commitments and extra-curricular activities create scheduling issues that also may need to be addressed.
• One parent is not abiding by the agreement: Where one party repeatedly breaches an order or agreement by impeding access to the child by the other parent, this may constitute a material change. See Zinck v. Fraser where the Mother acted contrary to the spirit of the joint custody arrangement by thwarting access by the Father. Day-to-day care and control of the child was transferred to the Father who better understood the important role played by both parents in the child's upbringing. While repeated violations of a court order or agreement may constitute a material change, more minor or trivial breaches may not. The key factor, as always, is how the violations impact upon the welfare of the child. If a child is being deprived access to a parent this would be contrary to their welfare.
• Animosity between parents: increased hostility between parents may constitute a material change in circumstances where it makes a joint custody order no longer viable. Joint custody orders require cooperation which may not be possible after a breakdown in communication between parents. See the case of Hildinger v. Carroll where the Father put his own need for control ahead of the needs of the child. The parent's lack of shared values and/or respect for one another caused the court to grant sole custody to the mother to whom the child had a closer bond. In high-conflict cases, the court will be concerned with limiting the child's traumatic exposure to parental conflict by reducing the need for the parents to interact with one-another. This may be achieved by granting one parent sole custody or reducing the number of exchanges. The courts generally favour the more reasonable parent in granting sole custody or deciding primary residence.  
• Poor Judgment/Conduct: there are many scenarios where a parent's conduct may pose a risk of emotional or physical harm to the child and constitute a material change in circumstances. Examples include out-of-control drinking, drug abuse, or criminal conduct. The extent to which the negative behaviour is being addressed by counseling or treatment is an important factor to consider. Other circumstances outside the control of a parent may include an abusive new partner who is violent towards the child or exposes the child to domestic violence. Exposing the child to these dangers may constitute a material change in circumstances resulting in a change in custody or access. 
• Improper Parenting/Neglect/Abuse: a failure to attend to educational, health care, or dental needs of the child may constitute a material change in circumstances. Obvious deficiencies in these areas may reveal a poor level of attention, care and supervision. Areas of concern in younger children may include diaper rash, a failure to immunize, lack of potty-training, dirty clothing, and signs of injuries. In older children, signs may include a failure to treat behavioural issues like ADHD, poor academic performance, or poor personal hygiene. Teachers can be a source independent evidence and should be consulted if and when concerns arise. A child with special needs creates additional challenges for a custodial parent. A material change in circumstances will arise if the child's special needs are not being addressed in an effective manner by a parent.
• Wishes of the child: where the court is satisfied that a child has expressed a clear and unequivocal preference for a change in residence, this will be considered a material change in circumstance subject to the age and maturity of the child. It is also important that the opinion was arrived at independently and without outside influence. There are several options available to obtain the views of the child through an independent 3rd party, including a views of the child report, OCL Report, appointment of counsel for the child, or interview by a judge. Involving a child directly in the litigation by way of sworn testimony is generally discouraged, as it tends to expose the child to parental conflict. Finally, the views of the child are not necessarily determinative of what is in their best interest.
• Self-improvement by the non-custodial (access) parents: Sometimes a parent may have suffered from a mental illness, addiction issue, or an irregular work schedule which made it difficult to exercise significant custody or access at the time of the original order or agreement. If their personal circumstances improve, the court may treat that as a material change in circumstance by awarding increased access or custody to that parent. However, if a child is thriving in the custody of another parent or caregiver, the court may be reluctant to change the status quo in favour of an untried option in spite of a parent's self-improvement efforts. Efforts should be made to put one's best foot forward before an agreement or order is made.

To conclude, there are a wide number of circumstances that may have been unforeseen at the time an order/agreement was made which will allow a court to vary the agreement. If a material change occurs the court may replace the agreement with what it deems to be in the child's best interest, following the factors outlined in s. 24 of the Children's Law Reform Act. However, if the agreement or order is working well for the child, it may be reluctant to change the current arrangement for a plan that is untested. 

Either parent can seek an order which would allow or prevent a parent from moving the child outside the jurisdiction. The court will examine a number of factors in arriving a decision.  They include: 

1. The relationship between the child and each parent, 
2. The desirability of maximizing both parents contact with the child, 
3. The preferences of the child, 
4. The reasons for the move only if a move is required for the parent to take care of the child's needs.
5. Disruptions to the child. (Gordon v. Goertz [1996] 2 S.C.R. 27 at para. 49)

As is the case in all decisions involving children, it is their best interest that must be of paramount concern. Where both parents offer a stable and nuturing home environment, a decision by one parent to move far away from the other parent presents the court with an uncomfortable dillema. The decision can be unpredictable, but here are some important factors to consider:

A. The Custodial Parent

The custodial parent controls the major decisions in a child's life. Presumably, the custodial parent is also the parent with whom the children spend the most time. It is in the child's best interest to have a happy, well functioning custodial parent. Considerable respect will be given to the wishes of the custodial parent to relocate, especially if a move would improve the custodial parent's emotial, psychological and/or economic well-being (see: Bjornson v. Creighton, [2002] OJ No. 4364)

In joint custody situations, if one parent is the "primary parent" and has taken over responsibility for the majority decisions, their choice of where to reside will be afforded greater respect (see Roth v. Carruthers [2000] OJ No. 5013 at para. 28-31).

If you want to prevent a move, it is important to retain and exercise custodial powers to ensure an equal footing when it comes to such major decisions. Joint custody, where both parents are involved in the major decisions and both participate equally in the lives of their children, will ensure that the views of each parent will be given equal weight.  (Dix v. Thomas, [2006] O.J. No. 3457).

In spite of the above, there is no presumption in favour of granting a custodial parent's wishes to remove a child from the jurisdiction, away from the other parent. The custodial parent has a responsibility to act in the best interest of the child. Sometimes this will allow a move, but other times it requires the custodial parent to stay in the jurisdiction (see Gordon v. Goertz ​2 S.C.R. 27 at para. 37). 

B. Maximum Contact

Having regular and frequent visits with both parents is generally considered to be in the child's best interest. This is known as the maximum contact principle found in s. 16(10) of the Divorce Act, and s. 24(2)(d) of the Children's Law Reform Act. In custody disputes, preference may be given to the parent willing to foster a good relationship between the child and the other parent (see Corriveau v. Blair, 2005 ONCJ 470).

A decision on custody will be made before a judge makes a decision on where the child will live and with whom.  In deciding a custody issue, a court can rely on a parent's plans to relocate outside the jurisdiction (see Hibbert v. Escano [2010] OJ No. 944 at para. 78).

The maximum contact principle is important in mobility cases. A move often significantly reduces access to a parent whom the child is used to seeing regularly. If the move is not necessary for a parent to meet the needs of a child, the maximum contact principle will likely prevail over the wishes of the parent to move (see Berry v. Berry, [2011] O.J. No. 5006).

The court is more likely to dismiss an application to relocate where the evidence indicates that the application is motivated, at least in part, by a desire to frustrate the other parent's access (see Wolf v. Wales, [2001] OJ No. 120 aff [2001] O.J. No. 4908). 

Nevertheless, the principle of maximum contact is subordinate to over-all consideration of the best interests of the child (see Nunweiler v. Nunweiler, [2000] BCCA 300 at para. 28). 

C. Stability and the Status Quo 

In addition to giving weight to the wishes of the custodial parent, and the desirability of maximizing contact with both parents, the need for continuity and stability in the life of the child is a very important consideration. 

A move that would take the child away from their friends, school, neighborhood and activities may result in a negative disruption and be contrary to the child's best interest (see Elliott v. Turcotte, [2009] ONCA 240 at para. 18). 

Where the move would cause a disruption to a stable environment, this factor is of "prime importance." (see Young v. Young, [2003] OJ No. 67 at para. 28). Factors include a disruption to family, schools, and the community the child has come to know.  

Conclusion

There are a number of competing interests and factors to weigh when determining whether a move is in the child's best interest. It is often a difficult decision for a judge to make, especially where both parents are committed to live in separate jurisdictions. It is an area where it is hard to expect parents to agree.  

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