What are the relevant factors used by a judge to determine whether or not a child has been removed from the custody of his mother?

The relevant factors, from Gordon v. Goertz, are at paras. 49 and 50: 49 The law can be summarized as follows: . . . 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50 . . . The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

A determination of custody and a determination of whether a child should be relocated - a mobility determination - are separate determinations: Rosenau at para. 17. The first determination to be made is the issue of custody including, if joint custody is ordered, primary residence. This determination is made with reference to s. 8 of The Children’s Law Act, 1997. Once that determination is made, the analysis referred to in Gordon v. Goertz may be necessary.

The overriding theme common to both s. 8 of The Children’s Law Act, 1997 and Gordon v. Goertz is a focus on the best interests of the child. E. Custody and primary residence