Case information

Family law — Custody — Mobility — Access rights — Whether analytical framework set out in Gordon v. Goertz should be revised in light of evolution of society over past 21 years, particularly mobility of members of society and large number of parents of different nationalities who still have family in their countries of origin — Whether analytical framework set out in Gordon v. Goertz should be revised so that criterion of child’s age is analyzed differently having regard to child’s needs, on basis that six month old child does not have same emotional and psychological needs as ten year¬ old child — Whether analytical framework set out in Gordon v. Goertz should be revised to consider reason for moving, and not only to determine whether this affects parenting ability of parent requesting move — Civil Code of Québec, art. 33.

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The respondent S.M. is of French nationality. She resided in France until 2010, when she obtained a student visa and came to a Quebec university for graduate studies in neuropsychology. She met the applicant S.D. in 2011, although she did not start dating him until January 2014. S.D. is of Greek origin and grew up in Quebec. They began living together in February 2015. The same year, S.M. gave birth to a little boy. The relationship deteriorated quickly, mainly because of cultural differences. The parties separated in May 2016, when the child was only five months old. The parties agreed that S.M. would have custody of the child and that S.D. would have access for short periods of time because the child was so young. That interim consent agreement was the subject of safeguard orders made by the Superior Court, which progressively increased S.D.’s access. Before the start of the trial, S.M. completed her studies and obtained a Ph.D. in neuropsychology. She informed S.D. that she intended to go back to live in France with her son. In response, S.D. brought a motion for shared custody of the child and asked that S.M. be prohibited from leaving Quebec with the child. S.M. sought sole custody and authorization to move to France with the child.