Ontario Civil

Family Law (Criminal Law)

Motions judge failed to afford great respect to father’s views as custodial parent

Appeal by father from motions judge’s decision dismissing his motion to permit his relocation from Waterloo to Pickering with child. Parties’ son was born in 2006 and was autistic with significant special needs. Father had sole custody of son and mother had access Thursday overnight and Friday evening one week and Thursday overnight and the weekend the other week. Mother lived in Waterloo. Father had been in serious relationship for four years with woman who lived in Pickering; they had son, aged three, together and partner also had two teenagers from previous relationship. Father wanted to move to Pickering so they could all live together as family and mother opposed move because it would reduce her access, increase her access costs and disrupt son’s relationships with her family and treatment providers. Motions judge found move was not in son’s best interests. Appeal allowed. Motions judge erred in placing burden of proof on father; once material change in circumstances had been established, motions judge was supposed to embark on fresh inquiry into child’s best interests. Motions judge also misapprehended father’s evidence and failed to afford great respect to his views as custodial parent. Father was primary caregiver of son and move had everything to do with son’s best interests. Father had required three stress leaves due to strain of caring for son alone and was uncertain he would be able to afford son’s continued therapy now that government funding had ended. Move would provide father with care-giving and financial assistance from partner, which would clearly benefit son. Furthermore, motions judge gave no weight to additional benefits to son likely arise from living with half-brother, with whom he had bonded and which therapist attested would be beneficial. Father was committed to facilitating mother’s access, son had no real connection to Waterloo community because of his condition and his support worker was leaving his Waterloo school, so there would be changes whether move occurred or not. Father had arranged for new therapy and education plan in Pickering and was likely to obtain employment with Durham Crown Attorney’s office. Move was in child’s best interest and permitted. Mother to have access every second weekend from Thursday to Sunday and father to pay $75 per month towards her fuel costs as proposed.

Sferruzzi v. Allan (Jul. 23, 2013, Ont. C.A., John Laskin J.A., E.E. Gillese J.A., and G.R. Strathy J.A., File No. CA C57228) 231 A.C.W.S. (3d) 445.

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