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Interesting Case Law What is "GTA"? - Greater Toronto Area?

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  • Interesting Case Law What is "GTA"? - Greater Toronto Area?

    Hi All,

    This is very interesting case law for those facing a parental move within a Jurisdiction (provincially) and the establishment of a child's school. The case is unique in that the child is "starting" school rather than changing schools. Rare situation before the court hence the reason I have raised it as a thread. Very unique analysis and determination that I rarely see in case law.

    In it, the concept of the "GTA" is contemplated by the Judge and what really defines the "GTA". As stated previously, the concept of the GTA has no binding legally in an agreement and should not be used. The reason being is clearly outlined in the case law but, if someone is still unsure "why" it should be not used, I can provide further analysis.

    [59] In these circumstances, Tara’s complete failure to communicate with Anton about her decision to move to Sutton was surprising and not consistent with the level of communication that is required in a joint parenting arrangement and the previous level of cooperation that existed between them. Her failure to communicate with Anton was not in the best interests of Lincoln and their agreement to jointly parent their son.

    [60] There is one obvious conclusion to draw from Tara’s failure to communicate. Tara knew that the Separation Agreement did not define the GTA. She did not tell Anton because she knew he did not appreciate that the border of the GTA extended as far north as Sutton. She knew that Anton thought Newmarket was the northern boundary. Tara had her heart set on the Sutton home because it reminded her of where she grew up. Rather than risk a dispute with Anton about her choice, she decided to make the decision and tell him after it was done.

    [61] As the court stated in Berry at para 22 “all significant decisions about the child must be discussed with the other custodial parent. Both parents need to minimize conflict between them for the benefit of their child.” Moving Lincoln’s home and choosing a school is a significant decision that directly impacts Lincoln. Tara’s failure to communicate with Anton created unnecessary conflict.
    The father in this matter was unsuccessful for one reason despite statements made in the order like this (my opinion):

    [98] Before leaving this point, I stress that Tara’s failure to communicate with Anton about important decisions concerning Lincoln must never be repeated. As the Court of Appeal stated in Berry, “all significant decisions about the child must be discussed with the other custodial parent.” During her testimony, Tara stated a clear commitment to increase Anton’s’ access immediately and again when the review occurs in May 2013. She must honour this commitment.
    And despite the conduct of the mother in these matter the whole decision hinged on (my opinion):

    [79] In this case we are looking at the existing parenting arrangement since neither parent has custody of Lincoln

    [80] The evidence is clear that Tara and Anton are caring parents and Lincoln has an excellent relationship with both. He also has a good relationship with his grandparents on both sides and spends time with all of them.

    [81] Tara was Lincoln’s primary caregiver following his birth while on maternity leave. She was primarily responsible for taking Lincoln to and from daycare and to his doctor’s appointments. She stayed home with him if he was sick.

    [82] After the parties separated in December 2011 and until the interim court order on May 23 2012, Lincoln resided with Tara 65% of the time and with Anton 35% of the time. The parents followed the parenting plan in the Separation Agreement without any difficulty. Up until Tara started to search for a permanent home, they had cooperated and communicated about Lincoln’s care. When the trial started, Lincoln had spent eight weeks living primarily with his father.

    [83] It is clear from the evidence that since birth and until the interim order, Lincoln was used to spending more time with his mother than his father and Tara took the lead on parental decisions affecting Lincoln’s care. I find that they approached their parenting of Lincoln in this manner because they believed that it would be in their son’s best interest.

    [84] It is also clear that the parents intended to review the parenting plan in the Separation Agreement with the intention that Anton’s time with Lincoln would be increased. Once again, I find that they reached this agreement because they believed that Lincoln’s best interests would be served by having more time with his father.
    The other important factor to consider is that the child in question in this matter has not been attending school and is just starting school. The father failed (my opinion) in the separation agreement to clearly define a geographical boundary that identifies the child in question's best-interests.

    Despite the mother moving, not notifying the father of the move and an agreement to "joint custody" because of factors set out in para. 79-84.

    Fathers take note. Maternity leave can and will be used against you. You have equal opportunity to take this time as paid leave. It is best you take this time, even if it bankrupts the family, to insure that your custodial rights are not bypassed by making a "best interests" determination to continue to support the family financially.

    Both parents, are equally responsible for emotional and financial support but, this case law potentially identifies that these two factors are not equally weighted when determining "best interests" of a child.

    Otherwise, the other parent in the matter can do exactly this if they want and shop jurisdictions.

    This case law is an excellent reminder to all parents (and especially fathers) that in joint custody, the time you spend with a child is more important than being transparent, open and honest with the other parent, even if "joint custody" is agreed upon in writing.

    Good Luck!
    Tayken
    Last edited by Tayken; 09-09-2012, 03:55 AM.

  • #2
    Case law for above cited case is as follows:

    Kim v. Kim, 2012 ONSC 4514 (CanLII)
    Date: 2012-08-03
    Docket: FS-12-17989
    URL: CanLII - 2012 ONSC 4514 (CanLII)
    Citation: Kim v. Kim, 2012 ONSC 4514 (CanLII)

    Comment


    • #3
      Berry v. Berry, 2011 ONCA 705 (CanLII)
      Date: 2011-11-14
      Docket: C52936
      URL: CanLII - 2011 ONCA 705 (CanLII)
      Citation: Berry v. Berry, 2011 ONCA 705 (CanLII)

      ...While the maximum contact principal is not absolute, it is mandatory. ....As the court decided in Woodhouse v. Woodhouse 1996 CanLII 902 (ON CA), (1996), 29 O.R. (3rd) 417 (C.A.), while being with a happy parent has a positive effect on a child, the legal test focuses on maximizing contact with both parents and minimizing disruption to the child.

      Comment

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