Matters related to child custody and access can be difficult to resolve when parents go through a separation or divorce. Even if parents live in the same city there can be emotional strains around parenting time. However, as we see in a recent decision from the Ontario Superior Court of Justice, such issues can be more difficult to resolve when one of the parents wants to move a significant distance from the other parent.

Parents live in same city for years after separation

The parents were married on July 2, 2011. They separated on November 9, 2015. They had three children while they were married, born in 2010, 2011, and 2013. While they have lived separate and apart for the last five years, they have not yet divorced.

Following their separation they shared the parenting of the children on a week-on/week-off basis. They did this despite not having a separation agreement in place.

The parenting arrangement in place was easy enough to manage since both of the parents lived in the same town.

Mother looks to move

The mother is now in a new relationship and has a child with her new partner. The partner had told the father in January 2021 that the mother intended to move with him to another part of Ontario, about a 90-minute drive from where they currently live.

The mother, her partner, and the children moved later in the month. The father maintains that the mother did not seek his consent before the move. His position is that the move impacts his parenting time with the children and sought an order that the children be returned.

Father seeks interim custody

In between the filing of the motion and the hearing, the mother stated she plans to move back to the same town as the father. However, the father asked the court that he be named the primary caregiver for the children on an urgent basis. He told the court the mother has not been properly supporting the children with online schooling, and they have fallen behind in school. He also said that he was worried the mother was suffering from substance abuse and had been “cat-fishing” men online in order to solicit funds from them. Ultimately, he said he was concerned with how these actions affect the children,.

The mother denied the father’s allegations of drug use and said the father returns the children in a dirty unkempt state, exposes them to his casual relationships, and uses drugs while taking care of the children.

Court maintains status quo

The court held that since this is an interim motion, there is not a great deal of evidence before it. In these situations, it is a well-established principle that the status quo be maintained in the absence of compelling reasons indicative of the necessity of change. The court found that while the father voiced legitimate concerns, he did not have much evidence to back those claims up. Changing the family’s parenting arrangement would be disruptive to the children, and a full hearing with proper evidence is necessary in order to determine the validity of the parties’ claims.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. We provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.

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