Barry Brown

The appellant appealed a motion judge's decision to change a final custody order that had granted him sole custody of his two sons and required them to attend a reunification program.

The younger son had repeatedly run away and refused to live with the appellant or attend the program.

The Court of Appeal upheld the motion judge's finding that the son's extreme resistance constituted a material change in circumstances and that it was no longer in his best interests to enforce the custody order.

The court also dismissed the son's cross-appeal seeking a declaration that he had withdrawn from parental control, finding the motion judge's order that no person had custody or access rights over him was sufficient.

The mother and the Chief of Police brought motions to change a final custody order that granted the father sole custody of two teenage sons and required police enforcement to compel the sons to attend a reunification program.

The sons, aged 16 and 18, had consistently refused contact with the father and actively evaded police enforcement.

The court found a material change in circumstances, removed the police enforcement clause, and rescinded the custody order entirely, concluding that it was impossible to enforce and no longer in the children's best interests.

No new custody order was made, leaving the sons to determine their own residential and contact arrangements.

The children and the Chief of Police were represented by separate counsel on the motions.

The father brought a motion to stay an interim order that allowed the mother to relocate with their two children to Sweden pending a trial scheduled for December.

The court considered the tests for both a stay and leave to appeal, emphasizing that the best interests of the children and continuity of care were paramount.

Finding no grave prejudice or irreparable harm to the father, and noting the assessor's recommendation that the children remain in the mother's primary care, the court dismissed the motion for a stay and awarded costs to the mother.