Pearson v. Whittingham – Unilaterally Moving the Child

This case considers a question frequently faced by parents in custody arrangements:  “Can I make the unilateral decision to move the child away from the other parent?”

Background

The parties are the parents of a three year old child, and had separated in June 2011 after living together for two years. Upon separation, the child remained in the mother’s care.

In August 2011, the father contacted the mother via Facebook and requested to see the child, which the mother refused. In October 2011, the mother moved to Calgary with the child without advising the father of the move. Thereafter, the mother blocked the father from further communication on Facebook.

Upon attending the mother’s home in Toronto and finding it vacant, the father commenced a court application requesting access to the child. Believing that the mother had moved with the child to the maternal grandmother’s home in Toronto, the father served the court materials there. He did not learn that the child had been moved to Calgary until February 2012 when the case was brought before the court.

The mother subsequently brought a motion seeking the dismissal of the father’s application on the basis that the court in Ontario did not have jurisdiction, as the child’s habitual residence was in Calgary at the time that the application was brought.

In particular, the mother claimed that the father had acquiesced in the child remaining with her after separation and waited six months after separation before commencing his action for access, thereby giving the mother de facto custody of the child.

The father argued that the mother concealed the move to Calgary from him, and that while he may have acquiesced in the mother having primary care of the child, he did not acquiesce in a move that would take the child across the country.

Analysis

The court found in favour of the father, holding that a dismissal of his application would pose risks to non-litigious parents involved in custody arrangements.

In particular, the court reasoned:

“If her position is correct, than [sic] a parent, by adopting a non-confrontational course at separation and not immediately litigating custody or access, faces the risk that the parent who has possession of the child will unilaterally and without notice change the child’s ‘habitual residence’, and change the forum in which issues about the child must be litigated”.

Moreover, the court rejected the mother’s argument that she had the authority to unilaterally move the child on the basis of her de facto custody and the absence of any court order or agreement to the contrary. Instead, upon reviewing relevant case law, the court found that de facto care of a child for a short period will not give rise to a right to unilaterally move the child in the absence of the other parent’s consent.

In addition, the court found that the child’s habitual residence was in fact Ontario at the time the father’s application was made, having regard to the fact that the child lived in Ontario with both parents until separation and that she had been in the mother’s sole care for just two months when the move took place. Further, that the mother did not advise the father of the plan to move and, in fact, concealed the move from him, and that the father did not consent to the move, either explicitly or implicitly.

Finally, the court took special pains to emphasize that there is no automatic rule that a custodial parent can unilaterally change a child’s residence and thus change the jurisdiction in which the arrangements for a child must be determined. The court stipulated that mechanical propositions such as this should not be used to determine mobility issues for children.

In the result, the court dismissed the mother’s motion.

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