boy looks out window

A.B. v L.J. 2020 ONSC 5248: In this case, the parents have joint custody of their two young children. The children are primarily resident with the mother, who has final decision-making authority. The mother and children had been living in Port Perry and the father in Burlington, where the children spent time with him on alternate weekends.

Both parents, who were represented by lawyers, brought motions: the mother to have the case transferred to Oshawa from Milton and the father to have the children live with him and go to school in Burlington.

Justice Conlon was not sympathetic to either party. He found the mother in breach of the existing final order because she had moved with the children to a location a few kilometres outside the maximum distance they were allowed to be from the father’s home in Burlington, also failing to give notice to the father of her intention to do so. He did not grant her order to have the case transferred.

The father’s motion failed for several reasons. First, Justice Conlon found it was not urgent so should have moved through the case conference process before appearing in front of him as a motion.

More substantively, Justice Conlon noted that the father’s motion was not supported by input from the OCL or live evidence as to why changing the children’s primary residence from the mother to him was in their best interests.

The father was not happy with the mother’s decision to continue remote learning for the children. On this matter, Justice Conlon noted:

“Why would the Court interfere with the final decision-making authority of the mother. . .? Absent compelling evidence that the mother’s decision is contrary to the best interests of the children or either of them, I would not interfere. I see no such compelling evidence here, notwithstanding the special needs of the eldest child in particular.

“In my humble opinion, the courts are not generally in a good position to second-guess the decisions of parents on this issue of bricks and mortar versus remote school programming, a debate in light of the whole COVID-19 situation.

“These children are strangers to me. I’m not about to play “big brother”, professor, psychologist and scientist all rolled-up into one and start opining on things that I know nothing about. If the father seriously wanted this Court to interfere in this regard, then he had to bring something good to the evidence pile. There’s nothing here, except his own musings.”