Background

• July 2009: parties married; lived with the father’s family in Ottawa
• November 2013: parties separated; mother moved to Toronto with child
• August 2014: parties attempted to reconcile; mother and child moved back to Ottawa

A consent order provided for joint “custody” (as it was known then), a rotating 2-2-3-day parenting time schedule, and that neither party would move the child’s residence sans the other parent’s consent or court order.

The mother later remarried and had two children. Due to her new spouse’s work, the couple wished to move to Richmond Hill, with the child (almost 10 years old now). The father opposed the move saying the child’s views should not have been given weight by the trial judge as the Children’s Aid Society provided evidence showing the child had been coached by the mother. He also submitted that the judge did not consider the disruption of the move to the child’s life in terms of finding a new school and losing frequent and close contact with the father and his family.

Issue

The father brought a motion to stay the trial judge’s decision allowing the move to Richmond Hill.

Did the trial judge err in her judgment?

Should the status quo pre-trial judgment be reinstated?

Analysis

The trial judge concluded that the child’s wishes were independent and genuine, and she did consider the impact the move would have on the child’s relationship with the father, his family, and the child’s school and community in Ottawa. Furthermore, the Children’s Aid Society’s evidence did not support the father completely.

The court held that the trial judge’s decision was owed considerable deference as she had had the benefit of hearing evidence from the parties and witnesses over the 10-day trial. Moreover, the fact that the move was simply between Toronto and Ottawa, and not international, was noteworthy. Allowing the child to live in Richmond Hill pending trial would not result in any irreparable harm.

The court acknowledged that the father was very concerned for his daughter and his relationship with her, but ultimately, his motion was dismissed with costs awarded to the mother.

Conclusion

The motion had to be decided then since school was about to start, and overturning the trial judge’s conclusions regarding the child’s best interests on a temporary basis based on fragmented affidavit evidence would not be appropriate.