BACKGROUND:
The Applicant Mother and Respondent Father were never married and have one child (hereinafter “the Child”) together, aged 12. The parties entered into a Separation Agreement in 2019 providing for joint decision-making responsibility and a week-about parenting schedule.
In 2023, the Father relocated to Holtyre, Ontario, approximately 600 kilometres from Ottawa, where the Mother resided. As a result, the original parenting schedule became impractical, and the Father began exercising parenting time primarily during summer vacations and school breaks.
In August 2026, the Father exercised scheduled parenting time with the Child but subsequently refused to return him to the Mother’s care, maintaining that the Child wished to reside with him in Northern Ontario. The Mother did not consent to this arrangement and brought an urgent motion seeking the Child’s return to Ottawa, primary residence, sole decision-making responsibility, and police enforcement provisions.
The Father brought a cross-motion seeking similar relief, including primary residence and sole decision-making responsibility. Both parties also requested the involvement of the Office of the Children’s Lawyer (“OCL”).
At the motion hearing, the Child attended the courthouse and expressed a desire to speak directly with the Judge. With both parents’ consent, the Court conducted a judicial interview to ascertain his views and preferences.
ANALYSIS AND THE LAW:
Judicial Interviews and the Child’s Right to Be Heard
The Court considered the circumstances in which judicial interviews are appropriate in family law proceedings and emphasized the importance of ensuring that children have an opportunity to express their views in matters affecting their lives.
Pursuant to section 64 of the Children’s Law Reform Act (“CLRA”), courts must, where possible, consider a child’s views and preferences to the extent that the child is capable of expressing them. Section 64(2) further authorizes a judge to interview a child, although the decision to conduct such an interview remains discretionary.
The Court relied on M.A.A. v. D.E.M.E., 2020 ONCA 486, which recognizes a child’s right to participate as fundamental to family law proceedings. Similarly, in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, the Supreme Court of Canada emphasized that children’s views become increasingly influential in determining their best interests as they mature.
The Court also considered SLH v. AWH, 2025 YKSC 76, which discusses the benefits and potential concerns associated with judicial interviews. While interviews should not be used to resolve disputed factual allegations, they may assist the Court in understanding a child’s wishes, experiences, and perspectives.
In this case, the Court determined that a judicial interview was appropriate given the urgency of the proceedings, the absence of independent evidence concerning the Child’s preferences, and the potential delay associated with obtaining OCL involvement.
During the interview, the Child clearly expressed his desire to reside with his Father in Holtyre while maintaining a meaningful relationship with his Mother and her family. The Court found him to be articulate, emotionally mature, and capable of providing thoughtful reasons for his preferences, with no indication that he had been coached.
Primary Residence and the Best Interests of the Child
The Court next considered the Child’s primary residence pursuant to section 24 of the CLRA, which requires that parenting decisions be determined exclusively in accordance with the child’s best interests, with primary consideration given to their physical, emotional, and psychological safety, security, and well-being.
The Court emphasized that the best interests analysis must be conducted from the child’s perspective rather than that of either parent, as established in Gordon v. Goertz, 1996 CanLII 191 (SCC).
Although the Mother had been the Child’s primary caregiver since 2023, the Court found that both parents were capable of meeting his needs and providing a stable home. The Father also had greater availability to spend time with the Child. Additionally, the Child maintained significant relationships with extended family members residing near Holtyre.
The Court acknowledged that the Father’s unilateral decision to retain the Child was inappropriate. Relying on Sain v. Shahbazi, 2023 ONSC 5187, the Court reiterated that parents cannot disregard existing parenting arrangements or resort to self-help remedies in an attempt to establish a new status quo.
However, the Court emphasized that parenting decisions must not be used to reward or punish parental misconduct. Rather, the overriding consideration remains the child’s best interests.
Although courts generally seek to preserve existing parenting arrangements at the interim stage, the Court determined that the Child’s clear and mature preferences, together with the surrounding circumstances, justified a change to the status quo.
Accordingly, the Court found that the Child’s best interests would be served by residing primarily with his Father in Holtyre.
Decision-Making Responsibility and Parenting Time
The Court also considered whether either parent should have sole decision-making responsibility.
Given the parties’ history of shared decision-making and their demonstrated ability to cooperate, the Court determined that joint decision-making responsibility remained appropriate.
However, recognizing the geographical distance between the parties, the Court established a structured consultation process requiring the Father to seek the Mother’s input on major decisions concerning the Child’s education, health, religion, and extracurricular activities.
Where the parties are unable to reach an agreement following consultation, the Father would have final decision-making authority, subject to written notification requirements.
To preserve the Child’s relationship with his Mother and maternal family, the Court also ordered that the parties equally divide summer and Christmas breaks, alternate March breaks, and permit the Mother to exercise parenting time one weekend each month in Holtyre.
Police Enforcement Clauses
Both parties sought police enforcement provisions. The Court considered section 36 of the CLRA, which permits police involvement in specified circumstances involving the unlawful withholding or potential removal of a child.
Relying on Patterson v. Powell, 2014 ONSC 1419, the Court emphasized that police enforcement provisions are intended to address specific, existing concerns rather than operate as ongoing enforcement mechanisms for parenting disputes.
The Court further relied on Mackie v. Crowther, 2019 ONSC 6431, highlighting the potential emotional harm that police involvement may cause children caught in parental conflict.
As there were insufficient grounds to justify police enforcement, the Court dismissed both parties’ requests, emphasizing that such provisions should be sought sparingly and only where their benefits outweigh the potential harm to the child.
CONCLUSION:
The Ontario Superior Court of Justice determined that the Child’s best interests would be served by residing primarily with his Father in Holtyre, Ontario, notwithstanding the Mother’s historical role as his primary caregiver and the Father’s unilateral decision to retain him.
The Court made the following temporary orders:
- The Child shall reside primarily with his Father and be immediately enrolled in school in Holtyre.
- The parties shall equally divide summer and Christmas breaks and alternate March breaks.
- The Mother may exercise parenting time one weekend per month in Holtyre.
- The parties shall maintain joint decision-making responsibility, with the Father having final authority where disagreements remain following the prescribed consultation process.
- The OCL shall be involved in the proceedings.
The Court declined to grant police enforcement provisions.
This decision reinforces the importance of ensuring that children’s voices are meaningfully considered in parenting disputes, particularly where a child demonstrates sufficient maturity to articulate informed preferences. It further confirms that while unilateral parental conduct is strongly discouraged, the determination of parenting arrangements must ultimately remain focused on the child’s best interests rather than rewarding or punishing either parent.
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