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Sferruzzi v. Allan

This was a case where the child, M, had significant special needs because of his autism. The father, Mr. Sferruzzi, was the primary caregiver and invested an enormous amount of time and money on his son’s extensive care. He participated in and monitored his son’s intensive therapy and progress; and was the sole financial provider for these programs.

A court order precluded the father from moving with his son from Waterloo without the mother’s consent, so he brought a motion to vary this court order. If permitted to relocate to Pickering, the father would have significant support in raising his son from his girlfriend of 4 years. She would share the financial burdens of care, ultimately creating a healthier and happier environment where he would be physically, emotionally, and financially advantaged with regard to caring for his son.

The mother, Ms. Allan, opposed the motion, expressing concerns about the reduced frequency of contact that she would have with their son, about the disruption in her son’s relationships with her family and his treatment providers, and about the expenses and difficulties associated with access travel.

The motion judge decided that the proposed relocation was not in the son’s best interests and therefore dismissed the motion. The father appealed this decision, and the Ontario Court of Appeal ruled that appellate intervention was warranted because the motions judge had erred in law by (1) placing the burden of proof on the father and (2) seriously misapprehending the evidence.

With regard to the burden of proof, the court explained: “Once the threshold requirement of demonstrating a material change in the child’s circumstances is met, the judge ’must embark on a fresh inquiry’ into the best interests of the child. Accordingly, it was an error for the motion judge to approach the motion on the basis that the appellant had to persuade him that the relocation was in M’s best interests.”

The Court of Appeal ultimately found that it was in the son’s best interest to move with his father to Pickering. With regard to the evidence, the father played a much larger role in son’s treatment and care, he was son’s sole caretaker, and the mother’s access time would not decrease after the move.