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Can Tardy Dad Force Mom to Move Back to Ontario?

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Can Tardy Dad Force Mom to Move Back to Ontario?

In situations where parents are separated or divorced and share custody, courts are sometimes called upon to decide whether one of them can permanently move away with the child, often to pursue new work or a new relationship. In such cases courts must give careful scrutiny to all of the circumstances before deciding; this includes examining the existing parenting/financial arrangements and support network, and how those will change either the benefit or detriment of the child. After such scrutiny, in some cases the court will reject the parent’s proposed relocation outright.

Some parents will proactively take matters into their own hands: They unilaterally decide to pre-emptively move away with the child first, and then return to court after-the-fact, asking for retroactive permission. Courts resoundingly condemn this self-help approach: it not only alters the status quo for the child, but it is also patently unfair to the other parent who resists the move and now has to get a court order to “undo” it.
This was precisely the situation in Rifai v. Green, where the father and mother had ended their marriage almost nine months before their (now) 1-year-old child was born. The father brought an emergency motion to undo a pre-emptive relocation to another province by the mother which had taken place about eight months earlier, when the child was three months old.

Arguably, until this point the father had been rather indifferent to his infant daughter: She had been in the mother’s custody since birth, and he had had no contact with her at all since she was two months old. Nonetheless, he brought a motion to force the mother to return from Alberta, where – with his permission – she had gone with the father’s permission for a 6-week stay to visit an ailing grandmother. Shortly after arriving, however, the mother advised the father that she was not planning to come back. In fact, she never did return to Ontario with the child.

A few months passed and the father continued to stay in contact though his lawyers, but mainly to dispute paternity and try to have DNA testing done. Meanwhile, throughout this period spanning much of 2013 the father paid no child support whatsoever, even though he was earning $45,000 per year.

In considering the father’s early-2014 emergency motion to force the mother to return, the court began by expressing its concern that the mother had engaged in self-help and had altered the status quo with the pre-emptive move. On the other hand, it also pointed to the father’s complete lack of support before and since the daughter’s birth, including his sporadic visits during her first two months of life, his lack of financial support, and his focus on denying paternity. Indeed, the father seemed uninterested in having more access until paternity was confirmed – and process which was stalled due in part to the father’s own foot-dragging. As the court put it:

[The mother] felt the [father] wasn’t actually interested in [the daughter’s] life – but he wanted to keep his options open. The [mother] couldn’t wait while the [father] made up his mind about whether he wanted to be a father. She made a life for herself and her daughter in Alberta. And now that’s the child’s habitual residence.
The reality was that as long as she stayed in Ontario, the mother was forced to struggle in the effective role of “single mom”, since the father had shown no interest in the child other than to try to refute paternity. In contrast, in Alberta she had family and friends who could provide her with the assistance and emotional support she needed.

The court observed:

There are consequences to the fact that the [father] ended up doing nothing – for eight full months. Time moves on. Children move on. The [mother] and [daughter] moved on. And really, it is difficult to blame the mother for seeking out a family support network, in the face of such ambiguous and half-hearted involvement from the father.

In short: even though the court disapproved of the mother’s unilateral change to the status quo, it was equally critical of the father’s 8-month delay in bringing his “emergency” motion. It said:

Eight months is a conspicuously long time, particularly when you factor in that it’s really been 10 months since the [father] last saw his child.

The court therefore denied his request for an order compelling the mother to move back with the child.

For the full text of the decision, see:

Rifai v. Green, 2014 ONSC 1377 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.