Court Cases & Orders Parenting Time & Decision Making

Mom Reneges on Deal to Live Near Kids’ Dad – Should Their Primary Residence be Shifted to Him?

Written by Russell Alexander / (905) 655-6335

Mom Reneges on Deal to Live Near Kids’ Dad – Should Their Primary Residence be Shifted to Him?

In a recent Blog I recounted the case of White v. Noel, where the mother had moved with the child to another province, in breach of an earlier court order. The court had to consider whether the best interests of the child were served nonetheless, and whether it should allow the mother to stay there anyway, in order to make a better life for herself and the child. In that particular case, the court concluded that it should.

But that decision was rather unique – courts usually do not retroactively endorse such self-help initiatives on the part of parents. Indeed, the results are usually quite to the contrary.
For example, in another recent case called Jones v. Jones, the mother’s unilateral decision to move away with the children had an entirely different initial outcome: The court removed her right to have the children reside primarily with her under a joint custody arrangement, and gave that right to the father instead. This meant the children had to move from Lindsay, Ontario where they were living with the mother, back to Waterloo, Ontario where the father still lived. The court ordered that the situation was to remain in place unless and until the mother moved back to Waterloo.

In that case, the mother’s relocation had been prompted by a desire to be closer to her family and upgrade her education; however, the move was in breach of a separation agreement between her and the father, the terms of which were incorporated into a court order.

That joint custody order mandated primary residence of the children was to be with the mother, but also called for her to try to find a job in Waterloo, Ontario after finishing her studies, which she did not do. Instead, she took a job in Lindsay and continued to live there.

The father brought a motion to have the mother cited in contempt of court (among other things); the mother made an unsuccessful bid to have the court order switching primary custody changed. She eventually appealed to the Ontario Court of Appeal, where a panel of three judges heard her submissions.

In short, the Appeal panel found that – although the lower court had considered some of the relevant factors – it had overlooked providing a valid legal and factual basis for switching the primary residence of the children in this particular case. The matter was sent back for a new hearing on this point.

First of all, the lower court had been correct in concluding that the mother’s failure or refusal to move to Waterloo as promised was a “material change” that triggered its ability to fully review all the circumstances, including whether moving the children’s primary residence from Lindsay (with their mother) to Waterloo (with their father) was in their best interests.

Next, the lower court had given some consideration to the question of whatever benefits might accrue to the children if they lived closed to both parents and did not have to travel frequently between Lindsay and Waterloo to see them both. But what it failed to do, was to expressly determine and rule on whether the best interests of the children would be served by switching primary residence from the mother to the father, and to consider what impact it might have on the children in view of the legal test.
This being the case, the only option was therefore to set aside the earlier order and have a new hearing on the primary residence issue.

For the full text of the decision, see:

Jones v. Jones (2014), 2014 CarswellOnt 16443, 2014 ONCA 822; reversing (2013), 2013 ONCJ 383, 2013 CarswellOnt 9680 (Ont. C.J.); and reversing (2014), 2014 ONSC 2122.

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.