Court Cases & Orders

Taking the Kids to See Grandma This Holiday?  Read This First

Written by Russell Alexander / (905) 655-6335

Taking the Kids to See Grandma This Holiday?  Read This First

With the upcoming season of holiday travel almost upon us, a recent Ontario case provides a good reminder:  Separated and divorced parents must strictly abide by the terms of any agreement or order in place for travelling with their children.

In Shapiro v. Feintuch the court was asked to resolve a dispute between two parents – who divorced nine years ago – but who continued to have conflict over many issues, especially the travel arrangements for their now-14-year-old son.

Earlier in the year, by way of an urgent motion, the father obtained an order forcing the mother to provide him with the son’s passport, and allowing him to keep it as his house.  This was to facilitate the father taking the son to Florida.  Less than a month later, the mother needed the passport back, so that she could take him to New York to attend two family events including a Bar Mitzvah.

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Initially, the mother did write to the father about taking the boy to New York, and asked for his consent.  But at first the father avoided answering directly, and raised other travel-related issues with her instead.  As the court noted:

This led to a long series of emails between the parties over the next five days that grew increasingly combative, vitriolic and lengthy.

The court continued the narrative:

It should be noted that in her original request on April 12, 2018, the [mother] had contemplated travelling on the afternoon of Monday, April 23 and returning on the morning of Wednesday, April 25, 2018. If the [father] had consented to this arrangement immediately in his initial response, rather than waiting five days and many emails to do so, this might well have resolved the matter. But after the extensive and often bitter emails that the parties had exchanged between April 12 and April 17, 2018, the [mother] was no longer willing to entertain a proposal she herself had contemplated in her original email. Instead, by this point the [mother] was determined that [the son] would travel to New York for both family events.

Since she could not get the boy’s passport in a timely manner, she decided to take matters into her own hands and arranged for him to be driven to New York by her parents. Border officials let them through even though the boy had only a birth certificate with him.

All of this was done without the father’s consent, although the mother advised of the boy’s whereabouts by email later that day.   During the span of the trip, the boy missed a total of five days of school, plus a regularly-scheduled access evening with the father.

This prompted the father to bring a motion, asking the court to declare the mother in breach of a prior order respecting their children’s travel arrangements.  The court granted the father’s motion and made the declaration.

The court noted that in 2015, after extensive litigation, the parents had agreed to the terms that governed any travel with their children.  Those terms had been embodied in three detailed paragraphs of a formal court order.  It stated that the father was to hold the son’s passport, and that the mother needed to get his consent before taking the boy somewhere like New York.

In defending her contravention of these requirements, the mother claimed that regardless of that prior order, her taking the boy to New York was actually in his best interests, and that the father’s consent should be dispensed with.

The court said it might have agreed with that argument, except for the fact the prior order contained the terms the parents had themselves agreed to.

Next, the mother argued that the father had withheld his consent to the trip unreasonably, and that she had no choice but to go anyway.  The court rejected this notion too, saying that it had no power to examine that issue; the parents had made it clear in their agreement – as reflected in the order – that they were giving each other the right to grant or withhold consent as they each saw fit.  As the court noted:

… the Order does not permit one parent to dispense with the other parent’s consent to travel, simply because the travelling parent regards the withholding of consent to be unreasonable.

Absent the father’s agreement, the mother had ignored a clear court order when she took the boy to New York anyway.  The whole point of the prior order, the court noted, was to avoid this kind of uncertainty and confusion over travel, which was not in the boy’s best interests.

However, in terms of the appropriate remedy, the court rejected the father’s request for $2,500 over and above his legal fees, noting this kind of penalty was reserved for contempt-of-court cases, not orders that declared a party in breach. The court added:

In coming to this determination, I have given careful consideration to the [father’s] submission that breach of court orders must have real consequences. These reasons should not in any way be interpreted as condoning parties in family law litigation from ignoring court orders. At the same time, I would observe that, in my judgment, these parties do take court orders very seriously. Having clarified the fact that the [mother] breached [the travel terms] paragraph … of the Order, I fully expect both parties to comply with it in the future. That said, the parties should understand that any future breaches of [those terms] will likely have much more significant consequences.

The court also admonished the parents that, going forward, they should,

…  be “brief and respectful in their emails, making no reference to either party or parties or their activities. Had this rule been followed in the present case, it is entirely possible that the conflict and disruption over this matter might well have been avoided.

For the full text of the decision, see:

Shapiro v. Feintuch, 2018

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About the author

Russell Alexander

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