“A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at later conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See Coe v Tope, 2014 ONSC 4002 at para 25; Costello v McLean, 2014 ONSC 7332 at para 11.
The status quo means “that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation.” See Batsinda v Batsinda, 2013 ONSC 7869 at para 28; Downs v Downs, 2022 ONSC 3382 at para 20.
When determining whether to allow a parent to travel outside the country with a child, the court must weigh the benefits of travelling against the plausible risks. See Saini v Tuli, 2021 ONSC 3413 at para 28.
The weighing process is necessarily fact specific. In Saini, the respondent sought to take the children in that case to California for over a month—she had to travel for work and did not believe the applicant could care for them while she was away. The court dismissed her motion because the travel was not essential for the children and the respondent could care for them.
In Yacoub v Yacoub, 2010 ONSC 4259, the respondent refused to consent to the children in that case traveling to Egypt with the applicant for a month. One of the concerns he raised was the risk they would not be returned to Canada—Justice McGee gave no effect to that submission because no supporting evidence was filed. Justice McGee held that the respondent’s other concerns (prepaid day camps and a pending piano exam) were outweighed by the “one time opportunity for the girls to visit extended family, explore their heritage and enjoy the benefits of world travel”. “Travel is a desirable experience for young people, particularly to meaningful locations and to reconnect with extended family” (at para 21).
Mahadevan v Shankar, 2010 ONSC 5608, is like this case. There, the respondent wanted to take the 4-year-old child of the marriage to India for Diwali and to visit his family. The applicant refused consent because she feared the child would not be returned to Canada. In that case, the respondent had ties to Canada—he was a tenured professor at McMaster University and living with his new partner in Hamilton. Even then, Justice Pazaratz dismissed the motion because of the risk of abduction: “The benefit of the proposed vacation does not nearly outweigh the risks. While family and cultural enrichment are to be promoted, the court must give primacy to the child’s physical and emotional security.”