Should Pre-Trial Relocation be Granted on an Interim Motion?

MacKenzie v. Newby
2013 CarswellOnt 14030

The parties in this case had one very young child together from a casual relationship. On an interim motion, the mother sought permission to move the permanent residence of the child to Nova Scotia on grounds that her parents, with whom she and the child lived, were selling their home and moving to Nova Scotia.

Courts are generally reluctant to permit a parent to relocate prior to trial without the benefit of a full hearing to determine what parenting arrangements are in the child’s best interests. Such an order creates a status quo that favours the parent who is permitted to move and can have permanent and long lasting effects.

In this case, the mother had been the de facto custodial parent and the father only had limited supervised access to the child, which he did not always exercise. The mother would have no support once her parents moved to Nova Scotia whereas if she was permitted to move, she would have the support of her parents and other family members so that she would be able to attend school and also be assured that the child’s needs were taken care of. The father argued that due to his limited financial resources, if the mother was permitted to move with the child he would not have any contact with her as he could not afford to travel to Nova Scotia.

Justice Zisman considered the well-known case of Plumley v. Plumley, [1999] O.J. No. 3234 (Ont. S.C.J.) to determine whether this move should be permitted on a temporary motion:

  1. A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial;
  2. There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial; and
  3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.

In this case, Justice Zisman acknowledged that the father loved the child and wanted to be involved in her life as much as possible. Justice Zisman considered the principle of maximum contact between the child and her father and the importance of the father maintaining access to the child.

If the child were to reside with the mother, the child would be living in a supportive, financially secure environment. The child would also have the benefit of the continued love and care of her maternal grandparents who played an integral role in her life.

Ultimately, Justice Zisman decided that the advantages of the mother and the child moving to Nova Scotia outweighed the disadvantage of the loss of contact with the father. Justice Zisman added, “I find that it is inevitable that after a trial, the mother’s position would prevail and she would be permitted to move and there is no reason to delay the inevitable.”

The mother was granted custody of child and permitted to move with child to Nova Scotia. The father was to have reasonable telephone and Skype access to child.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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