Court Finds Mother in Breach for Taking Son Out of the Country Without Father’s Consent

In a recent Ontario case, a court was required to decided the appropriate remedy where a mother took her son on a family trip out of the country without the father’s consent, despite a court order requiring such consent.

The Facts

The parties to the case divorced in 2009 and have two children together: a daughter, now 16 years old, and a son, now 14 years old. Following their separation and divorce, the parties entered into extensive litigation in order to settle on a parenting plan for their children. In 2013, an arbitral award was issued setting out detailed arrangements regarding parenting, which were incorporated into a final order in 2015 (the “Order”).

The part of the Order that dealt with mobility and travel specified that the children may travel throughout Canada and internationally with either parent; however, the parent travelling with a child was under the obligation to provide prior written notice to the non-travelling parent. The travelling parent had to inform the other of locations and phone numbers. Additionally, if one of the parents wanted to take a child outside of Ontario for vacation purposes, they had to provide the other parent with a detailed itinerary at least 30 days prior to departure. If the children had to be taken out of school for travels, the parent also needed to provide the other with 30 days’ notice and had to obtain written consent from that parent. Finally, it was ordered that the mother would keep the children’s passports at her residence and make them available to the father as required. Each parent was also ordered to provide the necessary authorizations to allow travel outside of the country with the children.

However, in early March of 2018, the father brought an urgent motion for an order compelling the mother to provide him with his son’s passport to take a planned trip to Florida. The motion was granted and, in addition, the court ordered that the father was to keep the son’s passport moving forward.

Less than a month later, the parents had a further dispute over the mother’s request to be provided with the passport for a planned trip with their son to New York. When the mother was unable to obtain the passport in a timely manner, she arranged for her son to be transported by car to New York without the father’s knowledge or consent, and without the passport. Instead, she asked her parents to drive the son over the border with just his birth certificate and only told the father of their son’s whereabouts after his departure for New York.

Issues

As a result, the father brought a motion seeking a variety of relief, including a declaration that the mother breached various provisions of the Order. In response, the mother brought a cross-motion requesting that their son’s passport be returned to her for safekeeping and that the father not be permitted to bring any further motions without leave of the court.

The Decision

The court began by noting the continuing conflicts between the parents, despite all attempts to reduce disagreements through arbitration and the parenting plan set out in the Order. The court observed that “minor issues continue to develop into major ones.” The court had also earlier described the email exchanges between the parents regarding travel arrangements as “a long series of emails between the parties [..] that grew increasingly combative, vitriolic and lengthy.”

The court stated that the Order set out the process to be followed in circumstances where one party wishes to travel with the children when they would otherwise be in school. It observed that the Order clearly 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 court rejected the mother’s argument that travel decisions should be determined on the basis of their son’s best interest, finding that the parties had already “previously settled on a process to deal with requests to travel.” Additionally, the court found that:

“The Order so provides precisely in order to reduce conflict and uncertainty with respect to travel. The alternative process proposed by the [mother] is essentially one that invites the parties to resort to self-help. This inevitably increases conflict and uncertainty, undermines respect for court orders, and requires more rather than less litigation.”

The court concluded that, while neither parent had acted reasonably in dealing with the proposed trip to New York, the Order simply does not permit one parent to dispense with the other parent’s consent to travel, even if they feel consent is being withheld unreasonably.

Regarding the remedy, the court agreed with the father’s first request and therefore issued an order declaring that the mother breached the Order by taking their son to New York, which caused him to miss 5 days of school without the father’s consent.

However, the court rejected the father’s request for $2,500 over and above his legal fees, stating:

“In coming to this determination, I have given careful consideration to the [father]’s submission that breach of court orders must have real consequences. These reasons should not in any way be interpreted as condoning parties in family law litigation from ignoring court orders. At the same time, I would observe that, in my judgment, these parties do take court orders very seriously. Having clarified the fact that the [mother] breached […] the Order, I fully expect both parties to comply with it in the future. That said, the parties should understand that any future breaches […] will likely have much more significant consequences.”

The court then dismissed the mother’s requests and admonished both parties by reiterating the instruction that both parents:

“[…] be brief and respectful in their emails, making no reference to either party or parties or their activities. Had this rule been followed in the present case, it is entirely possible that the conflict and disruption over this matter might well have been avoided.”

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Separation and divorce is challenging for everyone involved.  When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.