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Perkins v. Macierzynska: Unilateral Removal of a Child

Factual Background

This matter was heard by Justice Shelston of the Ontario Superior Court of Justice on March 27, 2020. The father requested an urgent motion to be heard due to the mother’s unilateral removal of their five year-old daughter from her habitual residence in Ottawa, Ontario, to Trenton, Ontario in order to live with her maternal grandmother. As a result of this relocation, the father’s court-ordered access was unilaterally suspended.

The mother deposed that the child was in her care on March 17, 2020 because the father had pneumonia. On March 18, 2020, the child started to have a dry cough and eventually exhibited flu-like symptoms. The mother asked the child’s maternal grandmother to take care of the child and bring her to a hospital in Trenton, Ontario to receive treatment. The child was treated at a hospital in Trenton and was anticipated to fully recover in one week. While the child was away in Trenton, the mother was not able to provide the father with a specific timeline for the parties to return to the specified parenting schedule and she advised that it would not be until sometime in mid-April, which prompted the father’s urgent motion.

Legal Analysis

Justice Shelston found that the parents have acted prudently in letting the child remain with the mother. However, when the child fell ill, the mother should have consulted with the father and brought an urgent motion, if no agreement was reached. The mother did not have the right to independently decide what is in the best interests of the child when the parties were bound by an existing court order.

In addition, the limited evidence produced did not support the mother’s position that the child should remain in Trenton until mid-April, as the doctor indicated that the child would fully recover in one week’s time. Therefore, the child was to be returned to the father’s care by Tuesday, March 31, 2020, failing which an urgent motion will be scheduled and heard on April 3, 2020.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.

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