In this case, the father brought a Motion seeking either that the children reside primarily with him (as per the Office of the Children’s Lawyer’s recommendations) or a week-on, week-off summer schedule to continue until a final resolution of the…
This case is significant as it illustrates the difference between an Order and an Agreement in the context of reconciliation.
In 2005, the mother and father agreed to a consent order which provided for the joint custody of the child with child’s primary residence with the mother. The order also stated that should either parent intend to move outside Kawartha Lakes, Ontario, he or she would give a least 60 days’ notice to the other parent.
The parties resumed cohabitation in early 2006 and lived together until February 2010, during this time they had another child. In March of 2012, the mother notified the father of her intention to move the children to Keswick, Ontario.
The father disagreed but the mother moved anyway. The father brought a motion for contempt of the court Order and his Motion was granted.
The issue at hand was whether or not the final order of 2005 remained in effect or whether the reconciliation of the parties ended the order. The important distinction here is that this matter dealt with reconciliation after an Order not an Agreement. Clearly reconciliation after an agreement ends the agreement unless the agreement provides specifically in the alternative.
Justice McKelvey found that there is nothing in the legislation that would support a conclusion that reconciliation for a period of time puts an end to a final order of the court. The court is very clear that a court order does not become a nullity because of reconciliation. Simply put, a court order can only be varied by a further court order and an order alone. The court also points out that there are significant public policy concerns which would suggest forcing parents to return to court after a failed consideration to renew or vary an order would discourage reconciliation.
In the end, the court found that the mother was in breach of the court order and that the breach was deliberate and wilful. The child was returned to Kawartha Lakes and costs were awarded to the father.