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Making a Good Case for Mobility, Shared Parenting Time and Interim Sale of Matrimonial Home



In the attached case of Lee v Eckinswiller, 2021 ONSC 6519, which was just published, counsel for the father won on all grounds. Mother had arbitrarily stopped parenting time of the two young children with the father in April 2021, stating that there was no continuing court order and alleging unspecified Covid fears and that the father may withhold the children. She then insisted on supervising the two children herself despite the continuing conflict between them.

The mother also opposed sale of the matrimonial home on an Interim basis. The title of the matrimonial home has been in the fathers name alone. The mother has been living there with the children. The father was paying for all of the carrying costs for this home to a point that he simply could not afford it anymore. During arguments the mother revealed that she had the means to live on her own.


Fathers counsel was successful on all the above points.


The judge ruled that mother had no right to withhold the children from the father as she was arbitrarily doing so. This is especially because, until April, the mother was willing to permit unsupervised access. The mother simply could not change her mind and have supervised access just because she wanted to. There was no logical reason.

The judge agreed that the carrying costs of the matrimonial home was simply too much for the father and that it had to be sold. The judge however gave an additional 60 days for the mother to live there while arrangements for the sale are being made. The mother will have to look for another location to live.


Finally, The mother brought a cross motion that she wanted to move from the location and relocate to a place five hours away. The judge ruled against the mother leaving the jurisdiction stating that there was no proper reasoning or materials based on which relocation could be permitted.

Analysis:

It is important to prepare thoroughly and to provide logical and full background information before arguing this type of a long motion. Father was successful because of the clear reasoning and materials provided in preparing for the case.

The new legislation in the Divorce and Children's Law Reform Acts are clear about relocation. A number of conditions need to be fulfilled. Clearly the mother was unable to fulfil these conditions.


Similarly the law is clear regarding sale of matrimonial home especially when the title is in the name of one party alone and carrying costs are so immense.


At Shankar Law, we are happy to assist and guide you in your family and matrimonial litigation and negotiations. We look forward to welcoming you at one of our three offices, Port Elgin, Owen Sound and Wiarton, which we work in to serve all of Ontario.

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