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Epstein’s This Week in Family Law | Interim relocation

A mother’s urgent motion for interim relocation in order to escape domestic violence granted in recent decision.



Epstein’s This Week in Family Law



By: Philip Epstein



Interim Relocation Permitted

McCluskey v. Stewart, 2015 CarswellOnt 12598 (Ont. S.C.J.): This is a decision of Justice Charney of the Superior Court of Justice (Family Court). The mother wishes to move on an interim basis to Sioux Lookout from Simcoe County in Ontario with her one-year-old son. She brings on this motion as an urgent motion and at the earliest possible stage in the proceedings. We have reported on a host of cases about interim mobility and the relevant case law. Simply put, an interim move is not generally permitted unless the applicant can demonstrate that there is no real triable issue. The onus is on the applicant and it is a heavy onus. However, in this case the applicant can easily meet the onus.

There was serious domestic violence. The Children’s Aid Society strongly supports the move and the mother would be isolated and face financial hardship and potentially further abuse and harassment if she remains in Simcoe County.

Justice Charney canvasses the leading cases on this issue including Costa v. Funes, 22 R.F.L. (7th) 492 (Ont. C.J.), paras. 20-21, Boudreault v. Charles, 45 R.F.L. (7th) 482 (Ont. C.J.), paras. 25-33 and Kapoor v. Kapoor, 2015 CarswellOnt 9450 (Ont. S.C.J.), paras. 19-20.

Justice Charney chose quotes from Boudreault v. Charles when Justice Sherr notes:

There is case law that says that if a primary caregiver is happier, this will benefit the child. See: Del Net v. Benger, 2003 CarswellOnt 3898 (Ont. SCJ).

I do not think that that is a sound principle of law. I acknowledge that some case law reflects that principle. There were many other supporting facts that would have permitted this move and the order was granted.

This was a very clear cut case for permitting the move, even though the distance between Simcoe County and Sioux Lookout is vast.

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