In the case Hazelwood v. Hazelwood, the mother appealed to the Superior Court of Justice from an order made in the Ontario Court of Justice where she was ordered to return the children of the marriage to Timmins, Ontario, or else turn them over to the care of their father.
Background
The parties married in December 2005 and had two sons, the first born in April 2005 and the other in January 2007. In October 2007, the parties moved from Toronto to Timmins. The parties eventually separated in July 2011.
In October of 2011, the mother initiated proceedings seeking among other things: sole custody, child and spousal support, and interestingly enough, an Order that the father “not remove the children out of the District of Cochrane, Ontario” without her written consent.
In March 2012, the Mother brought a motion (which eventually did not go forward) allowing her to relocate to Toronto with the children. Prior to any Motion taking place, the mother left Timmins with the children and moved them to Toronto.
Shortly thereafter, the father brought his own motion seeking the return of the boys to the District of Cochrane, and temporary care and custody of the children.
The judge, who heard both parties’ motions simultaneously, ordered that the children be returned to the Timmins area on or before June 1, 2012. The mother then appealed.
Appeal
During the appeal, J. Gauthier reviewed the principles of case law including the principles illustrated by J. Marshman in Plumley v. Plumley stating:
- A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
- There can be compelling circumstance that might dictate that a judge 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 or the best interests of children might dictate that they commence school at a new location.
- Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.
J. Gauthier also quoted J.Nelson in Serafin v. Serafin:
Thus, although it is open to the court to permit the move on a temporary basis, there needs to be cogent evidence to establish that the move is in the child’s best interest; that the determination of the issue cannot wait for trial; and that Ms. Serafin would likely be successful at trial.
The mother in the case at hand tried to argue that the children had already established a new routine in Toronto and therefore they should not be disturbed by having to return to Timmins. However, neither the motions court judge nor the appeal judge were swayed by this argument.
Although the outcome of this case is not unexpected, it is an imperative reminder that the courts will almost always order a return of the children to their home pending trial when there is a real and substantial issue to be tried.
Furthermore, this type of self-help that the mother chose to participate in, will only be detrimental to her at trial, as this type of behaviour illustrates that she is not concerned with the best interests of the children.