Custody and Removing the Children from the Matrimonial Home – Commentary on Isombe v. Johnson

Isombe v. Johnson is a decision about temporary custody written by Justice Van Melle. In this case, the mother unilaterally decided to move out of the matrimonial home with the parties’ two children, aged 7 and 3. Although the parties had been separated since December 2006, they continued to reside in the matrimonial home until the mother abruptly removed the children. In response to the mother’s move, the father immediately brought an emergency motion. The mother’s argument was that she was forced to leave the matrimonial home because of stress caused by her husband’s violent behaviour. She cited incidents in which the police were called, but charges were never laid against the father. The father denied these allegations. In her mandatory Financial Statement, the mother failed to disclose the fact that she purchased a new home in April 2007. The mother alleges that she did not omit this deliberately, but that she was not required to include it because the Financial Statement was prepared in March 2007, before she completed the purchase of said home.

Justice Van Melle ordered that the parties have interim joint custody of the children with a shared parenting regime. Justice Van Melle based this decision on the fact that the mother’s conduct in surreptitiously removing the children from the matrimonial home without consent or Court Order could not be sanctioned by the Court, especially since some of the incidents of violence that the mother relied occurred more than two years ago.

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