Ontario Civil

Family Law

Temporary order permitting move to U.S. would have effect of pre-determining result of case

Parties had two children. Mother sought temporary custody and permission to move immediately with children to United States. Father sought temporary custody of children and sought to prevent move with children. Mother was primary caregiver and decision-maker since separation. Children thrived in mother’s primary care. Father worked out of town during weekdays. Mother was unable to find employment in Ontario. Mother had job offer in United States. Mother would have more financial security in United States and would receive substantial pay increase. Mother presented plan that would provide substantial blocks of time with father. Mother offered to reduce father’s child support if mother moved with children. It was in children’s best interests to grant temporary custody to mother. There was not sufficient level of co-operation and communication to establish order for joint custody was in children’s best interests. Change in children’s residence was not permitted without trial. Temporary order permitting move to United States would have effect of pre-determining result of case. Best possible evidence required hearing from parties and witnesses and hearing independent views and preferences of children. Evidence did not show there was strong probability that mother would be successful at trial. Mother’s motion to move children to United States was dismissed. Access was to be as set out. Father was required to pay child support of $1,024 based on income of $69,122. Referral was to be made to Office of Children’s Lawyer. Costa v. Funes (July 17, 2012, Ont. C.J., Sherr J., File No. D56987/12) 218 A.C.W.S. (3d) 376 (11 pp.).

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