Cautious approach needed for temporary mobility motions to protect child’s best interests
The Ontario Court of Justice has found that a mother’s conduct and contravention of court orders constituted compelling reasons to change the status quo and has issued a temporary order placing the child in the father’s primary care.
In Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68, the parties, who were in a relationship from around October 2016 to February 2019 and who never lived together, had a child who was born in 2017 and who stayed in the primary care of the mother since birth. In February 2019, the mother asked the father to sign the child’s passport and a consent for her to travel with the child to Ghana. The father signed the consent and agreed for the child to stay in Ghana for three weeks starting in May, but this stay was extended to five or six months.
The mother and the child returned to Toronto by November 2019. A consent court order dated Nov. 8, 2019 temporarily directed that the child not be removed from the Greater Toronto Area without the prior written consent of the other parent or a further court order, but the mother moved with the child to London, Ontario in June 2020. The child has been in the father’s care since October 2020.
The parties have been involved in extensive litigation, including a motion by the father seeking the child’s return to Toronto or the Peel Region, seeking to ensure that the child’s residence not be changed without consent and seeking to place the child in his primary care. The mother, on the other hand, asked for an order giving her permission to move with the child to London, Ontario, among other things.
The Ontario Court of Justice issued a temporary order which would be stayed until the court has rendered a trial decision. This order placed the child in the father’s primary care and set the child’s residence at the City of Toronto or at the Greater Toronto Area. The mother would have weekly parenting time once she complied with certain conditions, including informing the father of her current address and contact number.
Under the order, the mother would have weekly virtual access to the child, which the father would supervise and could end if the mother said anything he considered inappropriate. The father could also immediately suspend the mother’s parenting time if she failed to abide by the order’s terms.
In its reasoning, the court disapproved of the mother’s unilateral removal of the child from the Greater Toronto Area without the father’s consent and without the court’s approval. The court found no credible evidence for the mother’s move to London in violation of the court order banning such a move.
“A cautious approach should be taken on temporary motions with respect to mobility to safeguard the best interests of a child and to avoid a parent’s manipulation of the court process,” wrote Justice Roselyn Zisman for the Ontario Court of Justice.
However, the court stayed the implementation of the order for the child’s return to the Greater Toronto Area until it has rendered the trial decision because the immediate return might jeopardize the subsidized housing that the mother obtained in London.
On the issue of which parenting arrangement would serve the child’s best interests, the court ordered that the child remain in the father’s care because the mother’s conduct and defiance of court orders amounted to compelling reasons to temporarily change the status quo. The court noted that the mother breached the consent order when she moved the child to London and caused the delay of the motion when she failed to serve and file her responding motion materials. The court questioned the mother’s priorities and disapproved of her misrepresentations, the tone of her affidavits and her approach to the litigation.
“The many references to the judicial system being unfair to her, the errors by judicial officers, accusations against opposing counsel and the father of engaging in unethical tactics and accusations of conspiracy against court staff lead me to conclude that she is intent upon escalating the conflict,” wrote Zisman.
