Staying with father in Canada not in children's best interest: Ontario Court of Appeal

Court refused to stop relocation of children to California with mother

Staying with father in Canada not in children's best interest: Ontario Court of Appeal

The Ontario Court of Appeal has refused to stop the relocation of two children to California with their mother, finding that it was not in their best interest to stay with their father in Ontario.

In Tovmasyan v. Petrosian, 2022 ONCA 583, the father of nine-year old twins sought for a stay order to prevent the mother from relocating to California with the children. Hasmik Tovmasyan and Armen Petrosian married in 2011 and separated in 2018. The court permitted the mother to relocate to California with the children and ordered the father to pay retroactive and ongoing child support. The father challenged this decision in the appeal court.

In applying the established test for a stay order pending the hearing of an appeal, the court said it should consider whether the appeal raises a serious question, whether the child will suffer irreparable harm if a stay is denied, and whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal. The court emphasized that the overriding consideration is always the best interests of the children.

No serious question on appeal

The court noted that the father listed 16 grounds of appeal. However, all these grounds were fact-related, such as the trial judge’s alleged misapprehension of evidence. The court also found that the father failed to demonstrate that the judge made palpable and overriding errors in respect of key factual findings.

“I am simply left with the father’s bald assertion in his notice of appeal that the trial judge committed errors,” said the court. In contrast, the court found that the trial judge clearly explained the basis for his findings of fact and the record contained lengthy reasons and justifications by the trial judge.

No irreparable harm

In a motion for a stay of relocation, the court underscored the burden of the father to demonstrate that, if a stay was not granted, the children would suffer irreparable harm. The court gave weight to the trial judge’s findings that it was in the best interests of the children to relocate to California with their mother because they had a stronger bond with her and the fact that the father had a history of perpetrating family violence.

The court also considered the reasonableness of the mother’s relocation proposal. She proposed to continue to have decision-making authority, which was not only the status quo but was also justified considering the distance to California and the inability of the parties to communicate effectively. The mother also proposed to arrange the children’s travel to and from the father’s place during his parenting time. The court concluded that it was in the best interests of the children to permit the mother to relocate with the children to California.

The appeal court further found that the “harm” of which the father complained was monetary in nature. The father asserted that he could not afford to pay the ordered support, but the court said this kind of harm would not usually qualify as “irreparable harm” that would support the granting of a stay order.

Balance of convenience

The court ruled that the balance of convenience and overall interests of justice did not support granting the stay order because it would cause a radical change in the living arrangements under which the children had grown up, where their mother acted as their primary caregiver. Taken as a whole, the record and evidence led the court to conclude that granting a stay would not be in the best interests of the children.

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