Custody and Removing the Children from the Matrimonial Home – Commentary on Isombe v. Johnson

Isombe v. Johnson is a decision about temporary custody written by Justice Van Melle. In this case, the mother unilaterally decided to move out of the matrimonial home with the parties’ two children, aged 7 and 3. Although the parties had been separated since December 2006, they continued to reside in the matrimonial home until the mother abruptly removed the children. In response to the mother’s move, the father immediately brought an emergency motion. The mother’s argument was that she was forced to leave the matrimonial home because of stress caused by her husband’s violent behaviour. She cited incidents in which the police were called, but charges were never laid against the father. The father denied these allegations. In her mandatory Financial Statement, the mother failed to disclose the fact that she purchased a new home in April 2007. The mother alleges that she did not omit this deliberately, but that she was not required to include it because the Financial Statement was prepared in March 2007, before she completed the purchase of said home.

Justice Van Melle ordered that the parties have interim joint custody of the children with a shared parenting regime. Justice Van Melle based this decision on the fact that the mother’s conduct in surreptitiously removing the children from the matrimonial home without consent or Court Order could not be sanctioned by the Court, especially since some of the incidents of violence that the mother relied occurred more than two years ago.

This Post Has 3 Comments
  1. It is unfortunate that there is little mention of the best interests of the children in Justice Van Melle’s brief decision. However, we frequently see similar situations in family law, where a mother makes allegations of abuse against a father who denies everything. The father is put on the defensive for fear of further allegations, and the mother begins taking unilateral actions concerning the children. The father’s only recourse is through the courts, which is often a slow process due to the lack of judicial resources. In the meantime, the mother creates an improper status quo.

    Perhaps Justice Van Melle’s decision can be used to remind parents who are behaving similarly with regards to custody and access that the court will not look favourably on such actions and may award costs against the unreasonable party.

  2. The removal of the children from the matrimonial home is traumatic for them and doing so for tactical advantage is contrary to their best interests.

    It is interesting that the Court did not place more weight on what the mother’s actions say about her ability to parent her children. A party should not be at liberty to unilaterally remove the children to gain some strategic advantage in litigation, especially considering the fact that there is a proper Court process that should be followed. The mother’s conduct in this regard calls into question her ability to make decisions in the Best Interests of the Children. The Court should look at what this says about the mother’s decision-making ability as well as her willingness to facilitate and promote the children’s relationship with their father.

  3. This decision begs the question of whether Justice Van Melle, in coming to this decision, placed significant weight on the fact that the father was never charged in relation to the violent incidents that the mother relied on. The mother’s possible need to escape from an abusive situation seems to have been outweighed by the fact that charges were never laid against the father. Perhaps this is because domestic violence is taken very seriously in Ontario and Justice Van Melle took the choice of the police not to charge the father as a sign that the allegations against him were not very serious. Had the father been charged criminally for his alleged behaviour, a criminal restraining order would likely have resulted which would have forced his removal from the home. The Court appears to have taken the mother’s claims of abuse as proof that she was trying to gain a tactical advantage rather than as a serious cry for help.

Leave a Reply

Your email address will not be published. Required fields are marked *