Factual Background

Pursuant to a Final Order in 2017, the parties have joint custody of their son. The child primarily resides with the mother and both parties reside in Hamilton, Ontario. The father has significant parenting time with the child, including three overnights per every two-week period. The father brought an urgent motion without notice to the mother, alleging that the mother is in the process of selling the matrimonial home and relocating with the child to Pembroke, Ontario.

Not only does the father oppose the relocation of the child as being against the child’s best interests, he is also concerned that the sale of the matrimonial home would involve prospective buyers attending the child’s home for viewing purposes, which is inconsistent with the physical distancing principles recommended by public health authorities. The father’s position is that if the mother wishes to relocate, then the child should primarily reside with him and that the child should not continue to live in the matrimonial home if the mother intends to have it listed for sale.

Legal Decision

The triage judge found that the issues in this case are urgent and scheduled the matter to be heard. However, the mother should be properly served with the father’s motion and the father was ordered to do so accordingly.

The Court recognized that the child’s safety and wellbeing may be impacted immediately, and as such, a short-term, temporary and without-prejudice order needs to be made before proper notice can be provided to the mother. The Court ordered that the mother shall not relocate the ordinary residence of the child outside of Hamilton, Ontario, and that the mother shall not allow strangers to attend the matrimonial home for listing and marketing purposes.

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