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The court allowed the child's relocation, finding joint custody does not preclude primary caregiver status.
This appeal concerns a child relocation motion where the mother sought to move her five-year-old son from Cochrane, Ontario to Thunder Bay.
The parties had joint and shared custody following their separation in November 2015.
The motion judge dismissed the mother's relocation motion, finding that the child would lose meaningful contact with his father and that the mother's financial difficulties were self-imposed.
The Court of Appeal allowed the appeal, finding that the motion judge erred in principle by failing to recognize the mother as the primary caregiver and by making a palpable and overriding error in concluding that the mother's financial difficulties were self-imposed.
The court found a valid and compelling parenting-based reason for the move, as it was necessary to enable the primary caregiver to remain financially viable while providing care for the child.
Mother's motion to relocate child to Thunder Bay dismissed to preserve shared parenting relationship.
The mother brought a motion seeking to relocate the parties' four-year-old child from Cochrane to Thunder Bay to pursue employment as a special constable.
The parties had a joint and shared custody arrangement.
The court applied the factors from Berry v. Berry for mobility cases involving two custodial parents.
The court found that the mother's financial difficulties were somewhat self-imposed and that she had not exhausted her search for employment in Cochrane.
The court concluded that the economic benefits of the move did not outweigh the significant and permanent disruption to the child's relationship with the father.
The motion to relocate the child was dismissed.
Leave to appeal granted where interim support order ignored separation agreement and pleadings.
The moving party sought leave to appeal an interim support order requiring payment of child and spousal support.
The parties had previously executed a separation agreement that provided for child support and contained a spousal support waiver, and the responding party had not pleaded a claim to set aside that agreement.
The court held that it was improper to grant interim relief contrary to the agreement when no pleading challenged its validity, as parties must know the case they must meet.
The court also found potential legal error where the motions judge relied on the Family Law Act rather than the Divorce Act in a divorce proceeding.
Given these concerns and conflicting case law on interim support orders where a separation agreement exists, leave to appeal was granted and the interim order was stayed.
