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Mobility - You do not have the right to remove a child

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  • Mobility - You do not have the right to remove a child

    Mobility quote of the month:

    [35] The Respondent clearly had the right to leave the matrimonial home on April 29, 2016, or at any other time she wished. But absent articulable reasons to support her view that the child’s safety was likely to be compromised unless she removed Kinsly from the environment of the child’s home, her right to take Kinsly did not trump the Applicants right to keep the child with him and, more particularly, the child’s right for continued regular contact with her father. The Applicant’s mother had arrived from Thunder Bay to be of assistance to these parents at a time of some apparent discord between them. There is no evidence that Kinsly needed the protection of being removed from the home environment. The Respondent believed that she was entitled to act and made it happen.

    Source: Cory v. Cory, 2018 ONSC 1273 (CanLII), par. 35, http://canlii.ca/t/hql1r#par35
    In Summary:

    1. You have the right to leave the home any time you wish.

    2. The only reason (safety concern) to remove a child from their home is one that is capable of being expressed, explained, or justified. (False allegations don't count!)

    3. Your right as a "parent" does not trump the other "parent's" right to keep the child with them and, more particularly, the child’s right for continued regular contact with the left behind parent.

    4. Parents, despite what they believe, their gender, etc... are not entitled to remove a child from their habitual residential home.

    In this matter the "abducting parent", used false allegations of child abuse, to control the other parent by establishing a false status quo which the judge easily defused:

    [37] To the extent that Kinsly spent more time with her mother than her father since the date of separation, I find was due entirely to the Respondent’s manipulation. The Applicant has sought equal and shared custody from the time this Application issued on October 22, 2015. In deciding the question of custody, I will approach it on the basis that time with Kinsly should have been shared equally by her parents. I also have regard to the “maximum contact” principle enunciated in s. 16 (10) of The Divorce Act. There is no evidence on which I can conclude that equal and shared custody is not in Kinsly’s best interests.

    Source: Cory v. Cory, 2018 ONSC 1273 (CanLII), par. 37, http://canlii.ca/t/hql1r#par37
    Justice Tausendfreund FTW!

    Good Luck!
    Tayken

    PS: Think twice before pulling this stunt.

  • #2
    And a parent who wants to move for a job... DENIED!

    [48] Mother is not granted leave to relocate to Montréal with the children. Accordingly, I allow Father’s motion and dismiss Mother’s motion.

    [49] In my view, the best interests of the children, including the maximum contact principle with respect to each parent, are best served by having the children remain in Brampton, in the community and with the connections with which these very young children are familiar. Given Mother’s position that she will not go to Montréal without the children, maintaining the maximum contact principle is served by denying Mother’s request.

    [50] Further, this case is a perfect example of a case in which the Court must approach an interim mobility request very cautiously. The evidence before me on this interim motion, as indicated, is fragile at best. The motion is brought on paper, solely. It was brought on an urgent basis, because of Mother’s new job. Whether the urgency is a true urgency, depends on the ultimate finding the Court makes with respect to whether Father agreed to Mother’s relocating with the children then reneged on the agreement. The evidence on this point is conflicting. The record is replete with hearsay. The parties rely on that hearsay for their positions. The question of mobility requires a fuller hearing than the current paper record based heavily on hearsay.

    [51] While Mother will be unemployed for some period of time, I have no doubt that she will find work in the GTA given the relative ease and speed with which she found work in Montréal in the human resources area. The extent to which the best interests of the children may be affected by Mother’s unemployment, therefore, will be limited.
    Temporary motion on an urgent basis.

    http://canlii.ca/t/hqlmg

    Comment


    • #3
      Given Mother’s position that she will not go to Montréal without the children, maintaining the maximum contact principle is served by denying Mother’s request.
      I thought that judges were not supposed to consider whether the moving parent would in fact go through with the move if the mobility application was denied. The idea is that it puts the moving parent in a bind.


      a) "I would still go"


      therefore you don't love your kid


      b) "I wouldn't go"


      therefore it is better to deny your application, since kid then gets both parents.

      Comment


      • #4
        Originally posted by Janus View Post
        I thought that judges were not supposed to consider whether the moving parent would in fact go through with the move if the mobility application was denied. The idea is that it puts the moving parent in a bind.
        Never heard that one before. Source?

        Comment


        • #5
          Originally posted by Tayken View Post
          Never heard that one before. Source?
          https://www.canlii.org/en/bc/bcca/do...11bcca230.html

          I've seen this before, can't find the Ontario case but I'll highlight the portion in the above case

          [27] Last, this court, and other courts in Canada, have discouraged reliance by a judge on any expression by the parent who is seeking to move, that he or she will not move if the child cannot accompany him or her. S.S.L. was a case in which weight was given by the trial court to the mother’s evidence she would not move without the child. On appeal, this court referred with favour to Spencer v. Spencer, 2005 ABCA 262 (CanLII), and Bourgeois v. Plante, 2009 PECA 12 (CanLII), leave ref’d [2009] S.C.C.A. No. 357. In Spencer v. Spencer the Court said, at para. 18:
          [18] In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move without the children should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classic double bind. If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of being regarded as self interested and discounting the children's best interests in favour of his or her own. On the other hand, advising the court that the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggesting that such a move is not critical to the parent's well-being or to that of the children. If a judge mistakenly relies on a parent's willingness to stay behind “for the sake of the children,” the status quo becomes an attractive option for a judge to favour because it avoids the difficult decision the application presents.

          Comment


          • #6
            Originally posted by Tayken View Post
            Never heard that one before. Source?


            Case law rather than legislation. This appeal case I just found might indicate though that it is not an issue, so I might be wrong.


            http://canlii.ca/t/gfwqj


            (d) The Double-Bind Issue
            [58] A second concern that has arisen in mobility cases is the potential for creating a factual presumption in favour of the status quo.
            Lots of discussion about the double bind follows.

            Comment


            • #7
              Double-blind doesn't apply because the judge found an improper motive in this matter. The parent used false allegations of child abuse as the grounds. Ultimately, the determination wasn't made on the mother's statement that she won't go if the children don't go. It was made on the fact that she relied on false allegations and other evidence which was used to establish joint custody and equal access.

              The judge was very clear in stating the explicit reason for the denial was the best interests of equal access and joint custody.

              The judge could find no evidence to not support joint custody and equal access which trumps the parental move.

              There is no evidence on which I can conclude that equal and shared custody is not in Kinsly’s best interests.
              The judge's statement is an enforcement of s.16 of the Divorce Act. It isn't used in the determination. It is a statement. The supporting evidence for joint custody and equal access is what was the key determination which was based on an application of best interests.
              Last edited by Tayken; 03-28-2018, 01:29 PM.

              Comment

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