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What do you do
when, to your
surprise, your
spouse vacates
the matrimonial
home with the
children ?
It may seem like
the options are
few, unfair and
expensive. They
are. Every day,
spouses
separate. Most
of the time, the
spouses’
separation is
anticipated and
foreseen. In
these cases, the
spouses will
often make
temporary
arrangements for
the children and
finances, until
more formal
arrangements can
be made with the
benefit of legal
advice.
However, it is
in the rare case
that one spouse
returns home
from work to
discover that
the other spouse
has moved out
with the
children. It is
in these cases
that the spouse
must act fast.
According to
Ontario’s
Children's Law
Reform Act,
each parent is
equally entitled
to custody of
the children,
but that right
is prejudiced
where that
spouse has
agreed to the
new custodial
regime. Section
20(4) states:
“Where the
parents of a
child live
separate and
apart and the
child lives with
one of them with
the consent,
implied consent
or acquiescence
of the other of
them, the right
of the other to
exercise the
entitlement of
custody and the
incidents of
custody, but not
the entitlement
to access, is
suspended until
a separation
agreement or
order otherwise
provides.”
Thus, it is
critical that
the spouse who
has just
discovered the
removal of the
children from
their home move
quickly to seek
a court order.
However, this is
not so simple.
It is
time-consuming,
expensive and
its result is
not guaranteed.
The spouse must
first retain
counsel, then
commence an
Application in
court and then
bring a motion
before a judge
asking that the
case be
considered an
emergency
(because if it
is not, then the
judge cannot
deal with the
case until
months later).
All this work
occurs while the
children are
residing with
the spouse who
left the home
and, in some
cases, while the
estranged spouse
is having no
contact or
communication
with the
children.
This recently
occurred in the
case of
Tulchinsky v.
Shuster (2009)
O.J. No. 405,
where Mr.
Justice Powers
decided that the
mother’s removal
of the daughter
from her home
and her father’s
life was
unreasonable and
unjustified. In
fact, he
characterized
the mother’s
conduct as
“premeditated”
and an
“abduction”. The
mother even
objected to the
case being
classified as an
emergency - to
delay the
proceedings and
possibly
establish a
status quo in
her favour. She
also argued that
the father was
abusive,
although Justice
Powers did not
accept this and
stated that,
even if it were
true, the mother
could not
unilaterally
remove their
daughter from
her father’s
life, where he
was actively
involved in her
care and
upbringing.
In this case,
the judge
reinstated the
status quo that
existed prior to
the spouses’
separation. He
was then asked
for a ruling on
costs.
Justice Powers
concluded that
the mother acted
in “bad faith”
which then
entitled the
father to an
award of costs
that would
reimburse him
for the work
involved in
seeking a court
remedy to this
problem.
The mother was
ordered to pay
the father costs
of $25,000.
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