Father Too Late to Stop Mother’s Move with Child

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In past articles I have emphasized the importance of acting promptly, which includes not only hiring a lawyer and getting advice, but also taking prompt and active steps to assert your legal rights. Delay in the form of inaction or even mere indecision can result in you losing out.

This was precisely the situation in a recent Ontario case called Rifai v. Green, 2014 ONSC 1377, where a father missed his chance to stop his child’s mother from permanently moving them both to another province.

In that case, the married couple had separated almost nine months before their child, now aged 1, was born.  The father had only brief involvement with the child and then cut off contact entirely.

When the mother asked for his consent to take the child to Alberta to visit her sick grandmother, he agreed.   However while she was there, the mother told the father that she had decided to stay in Alberta permanently.  The mother never returned.

About eight months passed, with the parents squabbling – through their lawyers – over certain delays in getting paternity testing to which the mother had acquiesced, and for which the father had agreed and then declined to pay.  The father paid no support during this time, even though he was earning about $45,000 per year.

Despite the long delay, the father then brought an “emergency” motion to the court, asking for an order requiring the mother to return with the child from Alberta, and asking that he be given exclusive care and control instead.

The court concluded that the father had simply waited too long.  Although it was true that he had only consented to a six-week trip to Alberta, his failure to promptly take steps to redress the situation when she failed to return were fatal to his right to ask for the court’s help now.   The court even pointed out that had he gone to court in a more timely way, he would likely have prevailed.  The mother was allowed to stay in Alberta.

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