Introduction

In May 2022, the Supreme Court of Canada (“SCC”) released Barendregt v. Grebliunas, 2022 SCC 22. This is the first relocation case decided by the SCC since the amendments to the Divorce Act, R.S.C., 1985, c. 3 (“Divorce Act”) came into effect, which provides for a statutory regime for relocation applications. Ontario was also one of the provinces which enacted a similar statutory relocation regime through the Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 39.4 (“CLRA”).

The statutory regime for relocation cases and the amendments to the Divorce Act, and the CLRA, underscore the central and primary emphasis as being the best interests of the child. The various factors that are relevant in determining the best interests of the child require a unique and contextual analysis of the parenting issues that emanate from the condition, means, needs and circumstances of the child.

The case of Barendregt, supra, originates from a trial decision in the British Columbia Supreme Court in 2019. The parties met in 2011 in northern B.C. and in 2012 the mother moved to Kelowna to live with the father. They got married, purchased a home, and had two sons. The parties separated after six years together. The parties’ home was an ongoing construction project and described as a “working environment” as opposed to a “living environment”. After the parties’ separation, the mother took the parties’ sons to her parent’s home in Telkwa (approximately 10 hours from Kelowna where the father continued to live). The parties agreed to share parenting time between Telkwa and Kelowna, and later they agreed that the children would remain in Kelowna with the father. The parents were to alternate parenting time on a weekly basis when the mother returned to Kelowna which did not occur. The mother eventually applied to relocate the children to Telkwa.

The trial judge awarded primary residence of the children to the mother and permitted the mother’s relocation request. There were two issues that convinced the trial judge in doing so: (i) the more significant issue of the two was the acrimonious relationship between the parents and its implication on the children, and (ii) the less significant issue was the father’s financial situation and especially his inability to maintain the home in Kelowna and make it livable.

The father appealed and applied to adduce additional evidence about his finances and the renovations he had made to the house since the trial. The B.C. Court of Appeal admitted the additional evidence on the grounds that it challenged a major reason for the trial judge’s decision (i.e. the father not being able to maintain his home), overturned the trial judge’s order, and held that it was in the children’s best interests to stay in Kelowna with both parents.

The Divorce Act amendments came into force on March 1, 2021, and so they were not in effect at the time of the trial decision or the appeal. However, they were in effect when the case made its way up to the SCC, which gave the SCC the opportunity to review the jurisprudence over the last 25 years since its seminal relocation case in Gordon v. Goertz, [1996] 2 S.C.R. 27 (“Gordon”), and the legislative framework for relocation cases which now exists in the Divorce Act. In addition to the relocation issue, the SCC first addressed the test for adducing evidence on appeal.

The Confirmed Test for Adducing Evidence on Appeal

The father sought to introduce evidence on appeal regarding the stability and certainty of his living circumstances which the trial judge had found was still an “open question”. The Court of Appeal considered the father’s evidence to be “new evidence” (i.e. not available at the time of the trial) as opposed to “fresh evidence” (i.e. available at the time of the trial but for whatever reason not introduced). The Court of Appeal also found that since the evidence was “new”, the test for the introduction of additional evidence by the SCC in Palmer v. The Queen, [1980] 1 S.C.R. 759 (“Palmer”) did not apply. The Court of Appeal allowed the evidence on the basis that it was “cogent and material” and it “directly addresse[d] one of the two primary underpinnings of the trial decision” (Barendregt, supra at para. 85). The SCC could not disagree more.

The SCC found that the test set out in Palmer applies to all evidence that is sought to be adduced on appeal to review a decision below, whether it is new or fresh, noting that although where the best interests of the children are involved, a flexible approach to Palmer is taken, it still applies. Therefore, the SCC found that the Court of Appeal erred in not applying the Palmer test.

The SCC went on to find that the father did not satisfy the first criteria of the Palmer test and that the father failed to act with due diligence to adduce the evidence at trial. The SCC also emphasized that the Palmer test should not be used to avoid the specific procedures that are in place for a review or variation when there are factual changes after a trial determination.

In this regard, the SCC’s decision is noteworthy for all family law lawyers who conduct appeals, as the SCC has confirmed that the Palmer test continues to apply on admitting new evidence on appeal.

The Framework for Relocation Cases

In the balance of its decision, the SCC considered the framework for relocation cases under the second stage of Gordon: whether the move is in the child’s best interests. In this regard, the SCC considered the development in the jurisprudence over the last 25 years, how the Gordon factors have changed, and the codification of those factors, and new ones, in the Divorce Act.

The SCC’s decision is significant for all family law professionals who work with separated parents on child related issues and on proposed relocations. Although the Divorce Act amendments codified the framework for relocation cases that was set out in the SCC’s decision in Gordon and the caselaw that refined that framework over the last 25 years, there are some notable changes.

While Gordon rejected a legal presumption in favour of either party, the Divorce Act now provides for a burden of proof where there is a prior parenting order, award or agreement (s. 16.93 of the Divorce Act). And, while the analysis in Gordon limited the consideration of a moving party’s reasons for relocating, this is now a specific consideration of the child’s best interests analysis (s. 16.92 (1)(a) of the Divorce Act).

The new Divorce Act amendments also address issues raised in the case law over the past few decades which were not present in Gordon. Courts are not to consider a parent’s testimony about whether they would move with or without the child (s. 16.92 (2) of the Divorce Act) and they must now consider any type of family violence and the impact on the perpetrator’s ability to care for the child (ss. 16 (3)(j) and 16 (4) of the Divorce Act). As well, with respect to contact between parent and child which should be according to the child’s best interests and not the “maximum contact principle”.

These issues and the analysis that is now required under the new framework are further discussed below.

Shared Parenting and the “Great Respect Principle”

In general, the pattern that has emerged over time is that a move initiated by a primary caregiver is more likely to be granted whereas it is less likely in the case of shared parenting (Barendregt, supra at para. 121). Section 16.93 of the Divorce Act now sets out this presumption. In shared parenting situations, the parent who seeks to relocate has the burden of proving that the relocation is in the best interests of the child, whereas if the primary caregiver wishes to relocate then the other parent has the burden of proving that the relocation is not in the best interests of the child.

Reasons for Relocation

Gordon restricted whether courts could consider a moving party’s reasons for wanting to move. However, the courts have found that the reason for the move bears on the best interests of the child (Barendregt, supra at para. 126). The new amendments to the Divorce Act now require the courts to consider the moving parent’s reasons for relocation (s. 16.92 (1)(a) of the Divorce Act). This factor should be considered to the extent that it is relevant to the best interests of the child (Barendregt, supra at para. 130). As well, a court should not be critical of a parent’s reasons for moving and the move does not need to be justified (Barendregt, supra at para. 129).

Parenting Time That Is Consistent With A Child’s Best Interests

Gordon required the courts to consider the maximum contact principle between the child and both parents. However, this factor was to be applied as far as it was in the best interests of the child even though the SCC notes that some courts interpreted the maximum contact principle as a presumption in favour of shared parenting or equal parenting time. The SCC held that such “interpretations overreach” (Barendregt, supra at para. 135). Section 16 (6) of the Divorce Act refers to this factor now as parenting time consistent with best interests of child, which frames this in a more child-centric way.

Parent’s Testimony About Whether They Will Relocate Regardless Of The Outcome

The court should not consider a parent’s willingness to move with or without the child as it gives rise to a “double bind”. A parent can appear to be prioritizing its own interests before the child (i.e. stating that they will move regardless) or they risk undermining their case (i.e. stating that they will not move if unsuccessful). This did not arise in Gordon but was an issue identified in the caselaw thereafter. This has now been codified in s. 16.92 (2) of the Divorce Act as a factor that is not to be considered.

Family Violence

Since the decision in Gordon, courts have acknowledged that any family violence that may affect a child’s well-being should be considered in relocation cases (Barendregt, supra at para. 142). The SCC stated “[t]he suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable” and that “[h]arm can result from direct or indirect exposure to domestic violence…” (Barendregt, supra at para. 143).

The recent amendments to the Divorce Act recognize that family violence is a critical consideration to the child’s best interests’ analysis (sections 16 (3)(j) and 16 (4) of the Divorce Act). The Divorce Act broadly defines family violence in s. 2 (1), which includes psychological abuse, financial abuse, and conduct that is violent or threatening.

The Factors To Consider For Relocation

Over the past 25 years, the courts have refined the framework set out in Gordon and the Divorce Act has now codified it, subject to certain exceptions noted above.

Given the development of the caselaw and the amendments to the Divorce Act on this issue, the SCC stated that the common law relocation framework can be reframed as follows: the significant question is still whether the relocation is in the child’s best interests, having regard to the “child’s physical, emotional, psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary” (Barendregt, supra at para. 152).

The SCC, at para. 153, summarized the factors that should be considered as follows, which are illustrative and not exhaustive:

1. All factors related to the circumstances of the child, which may include the child’s views and preferences, the history of caregiving, any incidents of family violence, or a child’s cultural, linguistic, religious and spiritual upbringing and heritage.
2. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, and shall give effect to the principle that a child should have as much time with each parent as is in the child’s best interests.

The SCC, at para. 154, further stated that the following factors should also be considered, which are set out in s. 16.92 (1) of the Divorce Act as part of the best interests of the child analysis:

1. Reasons for the relocation;
2. Impact of the relocation on the child;
3. The amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
4. The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
5. The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
6. Whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

Relocation and the AFCC Ontario Parenting Plan Guide

The AFCC-O Parenting Plan Guide (“Guide”) outlines significant principles with respect to relocation which are important to highlight given the new relocation framework.

As required pursuant to s. 16.9 (1) of the Divorce Act, a person who wishes to relocate with the child is required to provide 60 days’ written notice to the other party of the intended move. As the Guide points out, this may give parents time to discuss the issues surrounding the relocation and given the various factors that need to be addressed under the new framework, and the focus on the best interests of the child, this is an important period for parents to consider and discuss all issues from a child-centric perspective. The time may also allow parties to obtain the assistance of a mediator if they are unable to resolve the relocation on their own. The Guide states that parents should discuss changes to the parenting schedule, communications, arrangements and cost sharing to allow the child to maintain a strong relationship with both parents.

As well, as the Guide points out, one of the important factors that a court will consider on a relocation application is whether the proposed moving parent is supportive of the relationship between the children and the other parent and has a good plan for keeping that relationship despite the proposed relocation. Given the emphasis on the best interests of the child under the new relocation framework, this is a significant factor to consider. In the SCC case, the court highlighted that the mother was more willing to facilitate a positive relationship between the father and the children than not, and this was one of the factors that led to the court’s decision in allowing the relocation. As the SCC stated, at para. 8, the best interests of the child is a “…heavy responsibility, with profound impacts on children, families, and society.”

By: Golnaz Sara Simaei, Simaei Law Professional Corporation