Raising children can be difficult for traditional family units. Families with divorced or separated parents face numerous other challenges, some of which become apparent during the holiday season. While it can be difficult to juggle hectic schedule with pre-arranged access times, it’s still important for parents to abide by the terms of any agreements they may have with one another. This was illustrated particularly well in a recent decision from the Ontario Superior Court of Justice.

Issues arise nine years after divorce

The parents involved in the case were divorced in 2009, but continued to run into conflict when it came to the parenting of their two children. The issue before the court involved their son, who was 14-years-old at the time. The father had brought a motion before the court in March, asking for the child’s passport to be kept at his house in order to facilitate travel to Florida. In issuing the Order, the judge wrote that “conflict and uncertainty regarding travel arrangements for the children was not in their interests ad ought not to be repeated in the future.” However, not even one month had passed before the passport issue became problematic once more.

The New York Trip

The mother wrote to the father in April 2018, asking permission to take the child to New York for two family events, the first being on Sunday, April 22, and the second being on Tuesday, April 24. The prior court Order required her to obtain permission to do so, which she sought via email on April 12. Rather than responding with an answer, the father brought up an older issue about a conflict the parents had over whether the child could get a Nexus card. The email thread grew into what the judge described as “increasingly combative, vitriolic and lengthy.” The father eventually consented to the travel on April 17, bit only on the condition that he leave the evening of Monday, April 23, and return the morning of Wednesday, April 25. This timing had been proposed by the mother originally, but she was no longer ready to consider it by the time the father agreed to it.

The mother decided to make arrangements with her parents, where they would take the child to New York by car. Leaving the passport at home, they made it across the border, leaving on Thursday because the parents could not travel on Friday or Saturday for religious reasons. The mother informed the father of this via email on the Thursday evening. This led to further argument between the parents. The parents discussed having the child’s passport sent to him in New York so he could return by air, but those plans fell through when they were not able to agree on things. The child ultimately attended both family events and returned by car with his grandparents on Wednesday, April 25. He missed a total of five days of school as well as a scheduled evening parenting time with the father (which was made up the following Thursday).

The father commended a Motion  under Rule 1(8) of the province’s Family Law Rules, (failure to obey order), including a declaration that the mother had breached various provisions of the previous Order.

The court’s analysis

A 2013 an arbitrator involved in a case with the parents noted that due to conflict between the parents, “important decisions have been delayed and minor issues [have] become major ones which could not be quickly resolved.” His ruling was designed to leave little room for continued conflict. The arbitrator’s rules were clear, though. Paragraph 64 stated that neither child should be taken out of school by one parent “without 30 days’ notice to the other parent and unless they have the written consent of the other parent.” The mother was clearly in violation of this, but argued it was in the best interests of the child for him to travel to New York, and that the issue of travel should be determined with his best interests in mind. The court said it may have agreed with this had the parties not already agreed to a process to deal with travel, writing the Order “clearly provides that, where one parent wishes to remove the child from school for purposes of travel, the consent of the other parent is required. Although the Applicant attempted in good faith to secure the Respondent’s consent, ultimately the Respondent was only willing to agree to part of the proposed trip. Thus, because of the consent requirements in the Order, the Applicant was simply not in a position to take YF to New York for the entire trip.”

The mother then attempted to argue that the Order should be interpreted to apply only when the other parent is not unreasonable in withholding consent. However, the court noted that it would be contrary to the order to allow one parent to unilaterally decide when the other parent was acting unreasonable. The court found the mother to be in violation of paragraph 64 of the Order, writing,

“Clearly, the Order contemplates that both parties are to act reasonably with respect to travel arrangements, and the failure to do so would in all likelihood be taken into account by the court in appropriate circumstances. Having reviewed the email exchanges between the parties, I do not believe that either party acted reasonably in dealing with the proposed trip to New York. The point is simply that the Order does not permit one parent to dispense with the other parent’s consent to travel, simply because the travelling parent regards the withholding of consent to be unreasonable.”

At Jason P. Howie we have over 25 years of experience dealing with all types of family law issues, and know that it’s important for people going through separation, divorce, or shared parenting/custody issues receive reliable, well-informed legal advice with their best interest in mind. Our firm takes a calm, rational approach to the issues we face, understanding that some matters require urgency, while others call for a steady, methodical approach. Regardless of what your unique situation is, we are equipped to help you through it. Please call us at 519-973-1500 or reach us online to see how we can help you today.