This week, let us discuss a case just released from the Owen Sound Superior Court of Justice.
In December 2018, a final order was passed giving the mother the right of primary residence over the child, with generous access to the father. At the time of the final order, the mother and father both lived in London, Ontario.
Fast forward a year. In December of 2019, a full year after the status quo has been established, the father has moved to Kincardine, which is around 2 hours away.
Both parents love the 3 year old child. Differences erupt between the parents about the child’s well being. The father calls the Children’s Aid Society to complain about the mother and her treatment of the child. The CAS investigates. The CAS finds a one-time instance of the house being disorganized; and one instance of the mother having punished the child inappropriately. They also visit the father’s house and find that his house is clean and is suitable to have a child.
During an access visit in December 2019, the father takes the child away in his vehicle, while the mother’s attention is diverted elsewhere.
The mother is single, is not well to do, compared to the father, and has no vehicle. Father has a very well paying job and is living in Kincardine.
Mother is desperate to see the child. Mother calls the police. When the police finds out that the CAS is already investigating, they don’t interfere despite being shown the December 2018 final order giving the mother the right of primary residence. The CAS also states that the child is safe with the father. There is no police enforcement clause in the December 2018 final order.
In other words, Government mandated agencies do not interfere despite there being a final order. After almost 3 months, in February 2020, the mother sees the child at an exchange location. Given the wording of the final order, mother attempts to forcibly take away the child. Father prevents it. Police and CAS are again called but they don’t interfere asking parties to go to Court.
Since father is living in Kincardine, he feels that the Court jurisdiction has shifted to Bruce County (Walkerton). So, father brings both a motion to change and an emergency motion for a restraining order against the mother, sole temporary custody to the father and limited supervised access to the mother - all in all, a complete change in the status quo and complete change from the December 2018 final order.
Amongst all this, the COVID crisis strikes. His Honor, Justice Sproat heard the motion and issued the attached decision.
The Court ordered the matter to be returned to London, and that the final order issued in December 2018 should be respected giving primary residence to the mother. In essence, the Court ruled that:
1. The father ought not to have brought this motion in Bruce County by arbitrarily attempting to change the residence of the child from London, ON to Kincardine, ON.
2. The Court recognized that the mother was desperate in attempting to take back the child in February of 2020 since she was armed with a final order from December 2018.
Lessons from this decision:
Do not attempt to undertake self-help measures and to change the status quo or a final order arbitrarily. The father in this case, attempted to keep the child for three months in Kincardine and assumed incorrectly that the jurisdiction changed. It did not. The normal residence of the child continued to be in London, as per the final order.
At Shankar Law, we are happy to work with clients to fulfill their legal needs and to fearlessly litigate. In this case, the satisfaction was to see the mother have the child returned to her - after a long 4 tortuous months.
At ShankarLaw, we are happy to assist and guide you through whatever challenges you have in your spousal life. We work in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in PortElgin and in OwenSound.
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