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Case Comment: Amaya v. Bobb [2020] O.J. No. 5877 (Ontario Court of Justice, Toronto):  transportation of  a child when a parent relocates without consent or Court Order

By Ailin He* and John Syrtash**

Absent written consent from the other parent, the parent who wishes to relocate with the children should always obtain a court order permitting the proposed move. Section 21 of the Children’s Law Reform Act (CLRA) provides that a parent of a child may apply for a parenting order respecting decision-making responsibility and parenting time with respect to the child. Furthermore, the court may also determine any aspect of the incidents of the right to decision-making responsibility of the child. The issue of relocation falls within the ambit of such incidentsand the leading case on this issue is Gordon v. Goertz, [1996] 2 SCR 27, where the Supreme Court of Canada enumerated a list of factors that the court must consider when conducting an inquiry into what is in the best interest of the child.

However, without a written consent from the other parent or a court order approving the proposed relocation, the parent who unilaterally removes a child may be ordered to return him or her to their habitual residence or be subject to a non-removal order. A collateral issue of who should bear the responsibility to transport the children for parenting time has often become a subject of dispute. The non-custodial parent may apply for a court order pursuant to Section 28(1) of the CLRA to determine how the transportation of the children should be shared as an incident of decision-making responsibility.

In the recent case of Amaya v. Bobb, [2020] O.J. No. 5877, the Ontario Court of Justice (Toronto) discussed the issue of transportation of the children for parenting time. The parties in this case resided in Toronto, Ontario with their two young children of the union until the mother unilaterally removed the children to London, Ontario, without notice or consent from the father, and without a court order. The driving distance between London and Toronto, Ontario is approximately four hours return.

In January 2020, both parties agreed that, notwithstanding the mother’s unilateral removal, the mother would have temporary custody and that the father have access on alternate weekends. The father also agreed to be solely responsible to pick up and to drop off the children from the mother’s residence in London until the issue of custody is resolved on a final basis. However, due to delays in court proceedings arising from the Pandemic the issue could not be promptly resolved, and in October of the same year, the father brought a motion seeking an order to share the transportation of the children with the mother.

The father argued that his former partner abducted the children from their Toronto residence and as a consequence of her action, she must share the responsibility of transporting them for access visits. Furthermore, he argued that being the sole person driving the children from Toronto to London and back for every access weekend was mentally, physically, and financially draining.

The mother, on the other hand, submitted that she could not share transportation because she had no driver’s licence and no financial means to purchase a car, could not afford to take taxis, and that she did not feel safe to take public transportations during the Covid-19 Pandemic.

Despite the numerous logistical difficulties the mother presented, Justice Zisman ordered that she must share transportation with the father. In consideration of the maximum contact principle, Her Honour stated at:

In this case, it is in the best interests of the children to spend as much time as possible with their father. As the mother moved to London without notice or his consent, he is already deprived of spending time with them during the week. To further require him to be responsible for all the driving, rewards the mother for moving out of Toronto in the manner that she did. [paragraph 23]

Justice Zisman was also prepared to order the mother to bear full responsibility of transportation. However, she was concerned that the mother may come up with a variety of excuses for being unable to transport the children and thereby, affecting the father’s access time. Accordingly, she ordered the father to be responsible for picking up the children from the mother’s residence, and the mother responsible for picking up the children from the father’s residence at the end of each access weekend. The children can also remain in the father’s care until the mother shows up at the father’s residence.

In a very similar case of Gutmacher v. Dufoe, the mother was also ordered to be responsible for transportation of the parties’ child for access visits despite her health and financial challenges. In this case, she removed the child from North Bay to Vaughan, Ontario near Toronto, Ontario, without the father’s consent and without Court Order in the face of a Consent Order giving the father regular access in North Bay. The driving distance between North and Vaughan is approximately six hours return. The mother had already commenced a Rule 15 Change Motion to change the child’s habitual residence to Vaughan permanently but well prior to trial the Court issued a temporary Order enforcing the initial Consent Order. On the issue of transportation, Justice Mathias explained in paragraph 69 of his reasons that although the court was aware of the difficulties the mother experienced in transporting the child for access visits, the court must “recognize” that the father was not the parent that moved the child without consent or Court Order. On her Motion to Change, the mother ultimately succeeded in convincing the trial judge that she could move to Vaughan but the Court still imposed on her the sole responsibility for transporting the child from Vaughan to North Bay return for the monthly access that the father was thereafter to enjoy. However, when the child reaches school age it was only then that transportation was to be shared equally between the parties on alternate weekends.

Holding the parent who unilaterally removes the child responsible for transportation is not limited to exchanges for parenting time. In Berhanu v. Awanis, 2018 ONCJ 505, Justice Zisman ordered the mother, who unilaterally relocated the children to Niagara Falls, to be solely responsible for dropping off and picking up the children for reintegration therapy. In addition, the court ordered that when the involvement of the therapist terminated, the mother shall be responsible for transporting the children for the father’s access at a public location chosen by him.

It is also within the court’s jurisdiction to deduct transportation expenses from child support arrears. In Collins v. Garmoe, 2012 ONCJ 244, the mother removed the couple’s child from California to Milton, Ontario, without the knowledge and consent of the father. The father sought to be reimbursed for half of his transportation costs that he incurred to visit his children in Ontario. Although the court was sympathetic to the mother’s predicament while living in California, the court ordered that a portion of his transportation costs to be reimbursed by deducting a portion of retroactive child support he owed.

These cases serve as a caution against any parent who is contemplating of relocating with their children without prior consent of the other parent or Court Order. Before any kind of relocation that may impede or disrupt the other parent’s parenting time, that parent should either obtain a written consent from the other parent, or if the other parent objects, apply for a court order. Courts have been critical of parents who unilaterally remove their children from their habitual residence and upset the stability of the relationship between the children and the other parent as a result. Arguments attempting to evade transportation responsibility such as a lack of financial wherewithal to meet transportation costs or living under trying circumstances, such as a medical disability, are barely persuasive. At the end of the day, the relationship between each parent and the child should be promoted and the court will only consider and protect his or her best interests.

*Ailin He is an Associate lawyer at Garfin Zeidenberg LLP, which represented the Applicant father in Amaya v. Bobb [2020] O.J. No. 5877. 

** John Syrtash is a Senior Associate Lawyer at Garfin Zeidenberg LLP. He represented the Applicant father in the Amaya proceeding and the Applicant mother in the Gutmacher proceeding.

Contact Jon Syrtash by phone at (416) 512-8000 ext 410 or direct (416) 642-5410; email: jsyrtash@gzlegal.com.

Contact Ailin He by phone  +1.416.642.5424 and by email at ailinh@gzlegal.com.

Practice Areas: Family Law and Litigation

© Louis Vittas, 2021

This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.

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