Barry Nussbaum

The respondent mother moved the child from Ontario to Alberta approximately two months after separation without notice to or consent from the applicant father.

The respondent argued that the court lacked jurisdiction because the child's habitual residence had changed to Alberta.

The court rejected this argument, finding that the child's habitual residence remained Ontario at the time the application was commenced.

The court held that a parent cannot unilaterally change a child's habitual residence by concealing a move and without the consent or acquiescence of the other parent, particularly when the period of de facto care is brief.

The respondent's motion to dismiss for lack of jurisdiction was dismissed.

The moving party sought to vary a prior order requiring payment of child and spousal support, arguing a material change in circumstances due to loss of employment, reduced income, depression, and loss of a driver’s licence.

The court held that the moving party failed to establish a significant and sustained change in circumstances or demonstrate that his reduced income reflected his true earning capacity.

The medical evidence relied upon was inadequate to establish unemployability and did not meet the standards for expert opinion evidence.

The court maintained the previously imputed income under s. 19(1) of the Child Support Guidelines and declined to vary the support order or cancel arrears.

The motion to vary was dismissed, while the Ministry’s assignment of support arrears relating to social assistance payments was confirmed.