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PARENTS AND CHILDREN - Children's rights - Practice and procedure

Tuesday, April 04, 2017 @ 8:35 AM  


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Appeal by the father from a declaration the parties' minor child had withdrawn from parental control. The child was born in 1999. Her parents separated when the child was 18 months of age. The separation agreement provided for joint custody and required the parties to live within a certain radius within Ontario until the child turned 18. The mother remarried and moved to Florida. The child visited frequently. In 2014, the father advised the child that he was canceling a planned weekend Florida visit, and that six other planned visits would be cancelled. During the child's summer visit with the mother, the child decided she wished to remain in Florida. Unable to convince the child to return, the father obtained an order for custody with police enforcement. The relationship between the child and the father deteriorated. In 2015, mediation between the parties resulted in a consent order granting the father custody until the child turned 18. In 2016, the child completed high school early and obtained a scholarship to a Florida university. The father insisted she return to high school and refused to consent to her attendance at the university as a minor. The child applied for and obtained a declaration she had withdrawn from parental control. In a separate hearing, the court declined to find the mother in breach of the 2015 consent order and declared the consent order no longer enforceable. The father appealed.

HELD: Appeal dismissed. Ontario law did not have a formal process for withdrawal from parental control, as a child was able to do so unilaterally by taking control of their residence and education. Where declaratory relief was sought regarding withdrawal from parental control, the court's jurisdiction to consider the child's best interests was engaged. In such instance, a court was required to determine the relative interests of each person in the parent and child legal relationship. Therefore, the parents were required to be parties to the application, but the court retained discretion to direct their involvement and participation. To the extent that the application judge erred in accepting the father's submission to be a party to the child's application, it was cured by the conduct of the hearing in which the father filed materials and made submissions. The judge's findings were based on the evidence and resulted from a procedurally fair and full consideration of the child's best interests in the context of the parents' custody dispute and the child's desire to attend university.

R.G. v. K.G., [2017] O.J. No. 1127, Ontario Court of Appeal, E.E. Gillese, M.L. Benotto and L.B. Roberts JJ.A., February 9, 2017. Digest No. TLD-Apr32017005