Custody and Access With Respect To Relocation

Boudreault v Charles, 2014 ONCJ 273

This case addresses the issues of custody and access with respect to relocation.

Background

The parties lived with the Respondent since February of 2010 and separated in February of 2012.  The parties in this proceeding are the parents of a three-year-old child.  The Father was convicted of an assault while the mother was holding the child and has never had unsupervised access.  Further, the Father is in significant default of child support and a costs order.  The Applicant Mother brought a motion seeking permission to move with the child to Montreal at the end of June.  During submissions on this matter, the Respondent Father confirmed that he was no longer contesting the mother’s request for a final custody order, but brought a cross-motion seeking increased and unsupervised access to the child.

Analysis

Justice Sherr commenced his analysis of the law surrounding the issue of relocation on a temporary motion by citing Plumey v Plumey, [1999] OJ No. 3234 (Ont. SCJ).  In Plumey, supra, the court set out the following principles:

  1. A Court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.
  2. There can be compelling circumstances which might dictate that a justice ought to allow the move.  For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.
  3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

Justice Sherr continued his analysis by setting out additional principles regarding temporary relocation cases.  For those interested in such motions, a review of these principles can be found in Paragraph 26 of the decision.

After the above-mentioned careful consideration of the jurisprudence on the issue, Justice Sherr held, “the uncontentious evidence was overwhelming that the trial result would be inevitable – it is in the child’s best interests to move with the mother to Montreal at the end of E’s school term in June” (paragraph 29).  Further, Justice Sherr found that “[t]he advantages of the mother and child moving to Montreal clearly outweigh the disadvantage of any loss of contact with the father” (paragraph 29).

Justice Sherr weighed the applied the factors as set out in Gordon v Goertz, [1996] 2 SCR 27, to the evidence before the Court and found:

  1. The mother is the custodial parent;
  2. The child has had limited involvement (2 hours each week in a supervised setting) with the father;
  3. The mother recognizes the importance of facilitating the child’s relationship with the father;
  4. The mother provided evidence to show that the move was necessary to best meet the needs of the child.
  5. There is no disruption in custody arising from the proposed move; and
  6. There will be little, if any disruption to the child in moving to Montreal.

Continuing his analysis, Justice Sherr found that the mother “will likely be a happier and better-functioning parent in Montreal.  This will benefit the child” (paragraph 31).  Further, he found that the mother had put forward “a thoughtful parenting plan in the child’s best interests.  It is a plan that will meet the child’s developmental needs and need for safety, security and continuity” (paragraph 32).

Lastly, Justice Sherr considered the principles as set out in Plumey, supra.  He found that there was no genuine issue for trial regarding the move to Montreal and that there are “compelling circumstances to permit the move to take place now” (paragraph 33).  The Court based their reasoning on the fact that the mother’s student assistance was running out, she had no other source for support and no employment, regular support from the father was not forthcoming and the mother would have significant financial support in Montreal.  Furthermore, the court found that it would also “not be in the best interests of the child or E. to delay the move.  It is in their best interests to settle them into their new home and community before they begin school in September of 2014” (paragraph 33).

As such, Justice Sherr ordered that the Applicant Mother will be permitted to move with the child to Montreal at the end of the current school year.

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