Sole consideration in interim mobility motion is child’s best interests on temporary basis: ONSC

Mother would lose job opportunity if she waited for resolution of issues before moving, court finds

Sole consideration in interim mobility motion is child’s best interests on temporary basis: ONSC

An Ontario court has permitted a mother to move with her children to another province to pursue an employment opportunity that will allow her and her children to eventually achieve permanent Canadian resident status.

In Abbas v. Ayoade, 2020 ONSC 5821, the applicant mother and the respondent father, originally based in Nigeria, moved to Canada as refugee claimants. They subsequently separated, with the parties’ two minor children residing with their mother.

The mother sought orders for child support and custody over the children, as well as permission to relocate with the children to St. John’s, Newfoundland for an employment opportunity that would qualify her and her children to apply for a provincial immigration nominee program and eventually achieve permanent resident status in Canada. The mother finally moved to St. John’s to preserve the job opportunity even while these applications were pending.

The Ontario Superior Court of Justice found that, on an interim mobility motion such as this, the court should consider the request within the framework of what would be in the best interests of the child, as provided under s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, on a temporary basis.

The court found on a balance of probabilities that it was in the children’s best interests to allow the mother to relocate to St. John’s with the children, where they would primarily reside with her. The court stated that, if the mother had waited for the final resolution of all the issues, she would have lost the employment opportunity. The court also noted that it was probable that the mother would also be the successful party in relation to the issues of primary residence and custody at trial.

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The court made the following findings regarding the children’s best interests: The mother was the children’s primary caregiver and has been their full-time caregiver since the separation, with the father seeking or exercising minimal access. The mother made the arrangements for the children’s care in St. John’s and for the father’s access to them and shared all these details with the father and sought his input.

The father, on the other hand, has never argued that the primary residence of the children should be transferred to him, has offered no plan for the children to stay with him in Ottawa, has severed his refugee claim from the mother’s claim and has paid only $200 in child support, the court found.

“Although it is disruptive for the children to move from their community, school and daycare, they are very young, at five and two years of age,” wrote Justice Jennifer Blishen for the court. “The children have only been in Canada since July 2018. COVID-19 has minimized community involvement for Zarah and Zabreen over the past six months, as it has for all children.”

In granting a temporary order the court also noted that the father would have liberal video access to the children, as well as telephone access for days without video access. The father was also required to pay child support.

“Issues concerning child custody and access are difficult to navigate in normal circumstances, but when additional factors such as COVID-19 and immigration status are added to the mix, the stakes can be high,” wrote Howie Johnson Barristers & Solicitors in a blog post summarizing the case.

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