Court says Ciao! – Mother permitted to move children to Italy in custody dispute

The Ontario Superior Court of Justice made a surprising rendering in its recent decision in Trisolino v. De Marzi. Specifically, the court permitted a mother to move her children to Rome, in spite of the father’s vehement protests to the contrary.

So what factors motivated the Court to make this decision?

Background

The parties met in Italy in 2001, where the mother worked as a lawyer and the father was vacationing. The father eventually moved to Rome and the couple married and had two children, aged 6 and 9 at the time of trial.

In 2007, at the father’s insistence, the family decided to move to Canada. Upon relocating, the parties eventually secured an apartment and the father obtained employment. The mother enrolled in an LLM program at the University of the Toronto, which she successfully completed. The court found that in order to practice law in Ontario, the mother would have to write the LSAT, gain admission to law school, attend three years of law school, article, and pass the bar admission course.

After over four years in Canada, the mother claimed to feel isolated, frustrated at her inability to pursue her chosen career, and controlled by the father. In addition, the mother required surgery on her knee and would need constant care, which she could receive easily in Italy from her parents and family.

Notably, the parents both continued to reside in the matrimonial home at the time of trial, and there was no Separation Agreement in place or divorce application before the courts.

Issue

At trial, both agreed that the only issue that required immediate adjudication was whether the mother was permitted to move the children to Rome.

Analysis

The court began by summarizing the law with respect to mobility in child custody cases as articulated in the case of Gordon v. Goetz.

At the first stage of the test, the parent seeking to move the child must demonstrate a material change in the circumstances affecting the child. Once this threshold has been met, the court must consider what is in the best interests of the child, an inquiry that involves an analysis of the following factors:

  1. The existing custody agreement and the relationship between the child and the custodial parent;
  2. The existing access arrangement and the relationships between the child and the access parent;
  3. The desirability of maximizing contact between the child and both parents;
  4. The views of the child;
  5. The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that party’s ability to meet the needs of the child;
  6. Disruption to the child of a change in custody;
  7. Disruption to the child of consequent on removal from family, schools and the community he or she has come to know.

In completing its analysis, the Court noted that although the parties were neither separated nor divorced, the mother had always been the primary caregiver of the children. In addition, the Court observed that while the father was involved in the children’s lives to the extent that his full-time employment would allow, it was the mother who was chiefly concerned with their well-being and activities.

In its holding, the Court recognized that both parents were devoted to and loved their children. Moreover, Justice Penny found that if the mother was permitted to move to Italy, the children’s contact with their father would be detrimentally impacted. However, based on the father’s testimony, the Court found that there was nothing stopping him from following the mother and the children to Italy. In addition, the court found that the mother’s desire to return to Italy was multi-faceted and held significant benefits to the children’s best interests if they could be cared for by a well-functioning, happy, and financially better off primary caregiver. While the father stressed that the move would cause disruption to the children, the court found that the particular circumstances surrounding the case, including the children’s fluency in Italian, indicated that they would be able to adjust.

Ultimately, the court’s decision left the father with a particularly difficult choice regarding his future and the nature of his relationship with his children in the years to come.

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