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Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

In this unusual Ontario case, the court allowed the mother to move back to Italy with the children of the marriage, even though she and the father had not filed for divorce and were not even formally separated.

The couple married in 2002 and initially lived in Rome, where their two children (now aged 6 and 9) were born. They moved to Toronto in 2007. The mother, who was 41 and had limited understanding in English, had worked as a lawyer in Italy but was unemployed while living in Canada. She had taken English classes and was trying to re-qualify as a Canadian lawyer, but this essentially required her to start law school all over again, which the couple did not have the money to do. She had therefore spent her entire time in Canada acting as the children’s primary caregiver. Meanwhile, the father worked at his cousin’s downtown restaurant earning $32,000 per year.

Unfortunately, the couple argued frequently and were in marriage counselling. The mother was miserable in Canada, had serious health problems, and did not get along with the father’s parents. She was frustrated at not being able to pursue her chosen profession, and alleged that she had endured some physical violence at the father’s hands. However, the couple had never formally separated, but rather continued to live together for financial reasons.

Against this background, the mother came to court to have it rule on a single question: whether she should be allowed to move back to Rome and take the children with her. The father wholeheartedly opposed her plan, as he feared he would inevitably lose contact with his children.

In hearing the matter, the court summarized the mother’s position as follows:

In essence, Mother says she is miserable here. Things did not work out as they had hoped. They have no money, she cannot work. She is cooped up in a small apartment, receiving no income and requiring government subsidies for daycare. She is isolated and terribly unhappy. This is why she wants to return to Italy with the children.

Mother’s parents bought her an apartment near to them and to schools in a nice neighborhood of Rome. If she returns to Italy, she can practise her chosen profession and earn a good income. She has two job opportunities available to her already. In Rome, she would enjoy the support of her extended family (which is considerable). Language would no longer be an issue for her.

The court applied the established legal tests to the situation, and considered all the factors including the mother’s historical status as primary caregiver, her reasons for moving, the desire to maximize contact with both parents, and the children’s own views. It also considered the dynamic between the children and various individuals, including their parents, both sets of grandparents, and other extended family.

In this case – and while acknowledging that both parents loved and wanted the best for the children – the court concluded that the mother’s plan to move back to Italy was in their best interests. For one thing, the move would optimize her ability to find remunerative and fulfilling work, which would in turn impact positively on the children’s lifestyle. The mother also had a supportive extended family, which included devoted and wealthy parents (they owned an apartment in Rome, a cottage in northern Italy, a beach house in southern Italy, and a timeshare condominium in Manhattan, all of which were available for the mother to use). The children were both Italian citizens and were fluent in the language; they would have very little difficulty adjusting to the move.
In coming to this conclusion, the court also took into account the impact on the father, primarily that he would no longer have frequent contact with the children. (And noted that the father had not decided on whether he was willing to move to Italy as well). Nonetheless, it was satisfied that the economic prospects of the mother (alone) in Italy would exceed the parent’s combined family’s economic prospects, were they to remain in Canada.

Accordingly, the court granted the mother’s request, and allowed her to move with the children back to Rome.

Trisolino v. De Marzi (2012), 2012 ONSC 3921  http://canlii.ca/t/fs3bs
Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For further information, or to schedule an appointment, call 1.905.655.6335.

 

2 Comments
  1. Darrell Waisberg #

    The matter is currently under reserve at the Court of Appeal.

    March 4, 2013
    • Thanks for the update Darrell.

      March 4, 2013

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