Relocation refers to a situation where a parent with parenting time or decision-making responsibility over their child seeks to move to a new location with the child, either within or outside the same jurisdiction. A relocation, regardless of how far, may significantly impact the child’s relationship with the other parent and may require subsequent changes to the existing parenting arrangements.

In cases where the other parent appeals a trial judge’s findings and seeks a stay of the relocation order, they bear the burden of establishing that the appropriate legal tests have been met. In a recent decision, the Court of Appeal for British Columbia explained how appellate courts address relocation issues, particularly in the context of family violence.

Mother seeks divorce and relocation order for children

In the case of J.T.P. v. K.S., the parties were married in May 2018 and separated on September 16, 2016. They had two children together. On September 15, 2016, the respondent mother filed a Notice of Family Claim seeking, among other things:

• A divorce pursuant to the Divorce Act;
• An order pertaining to parenting arrangements under the British Columbia Family Law Act;
• An order under both the Divorce Act and Family Law Act that the children can move with the mother to Germany;
• Distribution of family property pursuant to the Family Law Act; and
• The sale of two properties in accordance with the Family Law Act.

On September 16, 2018, a physical altercation occurred between the parties in front of their children, leading to a civil action brought against the applicant (the father). As a result, the mother was awarded damages of $795,019.68 in November 2021. The father appealed the civil judgment. However, one property was sold, and the award amount was secured in a solicitor’s trust account pending further order.

Trial judge orders relocation of children to Germany

Justice MacNaughton heard the highly contentious family matter in the fall of 2021 over the course of a 40-day trial. Significantly, the Court ordered that the children would be relocated to the Celle/Hanover region of Germany with their mother, who would exercise all parenting responsibilities. The mother intended to move with the children in time for the beginning of the school year.

The father sought a stay of this order, while the mother argued that the Court did not have jurisdiction to stay any of the orders under the Family Law Act and the provincial Supreme Court Family Rules.

Father seeks stay of relocation order

On appeal, the Court of Appeal began its consideration of the issues by noting that the onus was on the applicant (the father) to establish the right to a stay. It then cited Skookum Creek Power Partnership v. JVD Installations Inc., which summarized the traditional test for ordering a stay of a trial judgment pending appeal, requiring that:

1. There is some merit to the appeal in the sense that there is a serious question to be determined;
2. Irreparable harm would be occasioned to the applicant if the stay was refused; and
3. On balance, the inconvenience to the applicant if the stay was refused would be greater than the inconvenience to the respondent if the stay was granted.

Generally, the overarching consideration is for a court to determine whether granting a stay is in the interest of justice. However, the Court emphasized that a relocation order is not based on the contending parties’ interests but, instead, on the best interests of the children who are the subject of the relocation order.

Low merit threshold

The Court noted that the merit threshold component of the test is low. Per RJR-MacDonald Inc. v. Canada (Attorney General), a court must be satisfied that the issues raised on appeal are not vexatious or frivolous. In a family law appeal, an appellate court must also be mindful of the narrow scope of appellate review. Citing Barendregt v. Grebliunas, the Court indicated that “absent an error of law or a palpable and overriding error of fact, deference is vital.”

When reviewing the evidence, the Court found that the incident of family violence was a considerable factor analyzed by the trial judge in her decision to grant the mother primary care and decision-making responsibilities, in addition to the relocation order. The father argued that his civil action appeal, if successful, would have a “waterfall” effect on the correctness of the family judgment. While the Court was unconvinced that the civil action would fundamentally impact the family court judgment, the position was arguable. Therefore, the father had met the merit threshold for a stay application.

Irreparable harm if stay is refused

The Court acknowledged that the irreparable harm test required modification as it related to a relocation order, as the irreparable harm must relate to the children and not the disputing parties (the parents). The Court cited an Alberta case which explained that irreparable harm requires more than mere interruption to the children’s lives. Instead, there must be “evidence of special circumstances that demonstrate potential harm to the child, or some harm that is “real and significant” and is more than a transitory disturbance.”

Upon review of the evidence before it, the Court was not satisfied that the children would suffer irreparable harm if a stay were refused. In this case, the trial judge had provided substantial reasoning concerning her finding that it was in the children’s best interests to reside with the mother and for there to be “considerable physical separation between [the] parents.” Some of the factors considered by the trial judge in arriving at this decision included:

• The fact that the mother’s family lived close to Hanover and was committed to supporting the mother and the children;
• The mother had been the primary caregiver for the children since 2018;
• The mother had proposed arrangements which would allow the children to continue fostering a relationship with the father and his family in a way that balanced their need for peace and security; and
• Relocation would provide stability for the children following “intense conflict and instability” due to the parents’ inability to cooperate and the family violence incident.

Despite the trial judge’s acknowledgement that the relocation would negatively impact the children’s relationship with their father, she was satisfied that the mother’s proposed parenting plan would reasonably mitigate this adverse effect.

Balance of convenience

The balance of convenience required the Court to consider the impact of granting or refusing a stay in all the circumstances of the case. In this instance, the Court modified the test to evaluate the effect of the stay being refused against the children and the impact the stay being granted would have on them.

When weighing the balance of convenience to the children, the Court was influenced by both the trial judge’s findings that relocation was in their best interests and the Court’s finding that the children would not suffer irreparable harm if they moved to Germany with their mother. The trial judge also highlighted that the relocation would: “insulate the Children from the continued effects of the family violence and, what continues to be, the toxic interpersonal dynamics between their parents.” Based on this, the Court concluded that the balance of convenience favoured the dismissal of the stay application of the relocation order. The Court was also satisfied that denying the stay was in the best interests of justice and the children.

Court of Appeal dismisses stay application

Upon consideration of all the evidence and contributing factors, the Court of Appeal ruled that on the balance of convenience, a dismissal of the stay application was favoured, and the relocation order was upheld.

Parties need to be aware that appealing a family law judgment can be complex, and generally, appellate courts will grant significant deference to the trial judge’s findings. Further, in matters involving a stay application, the applicant bears the onus of establishing that the three prongs of the tripartite test have been met.

Contact the Family Lawyers at Meridian Law Group in Vancouver for Advice on Family Law Disputes

The experienced family lawyers at Meridian Law Group in Vancouver help clients navigate various family law issues stemming from divorce and separation. When it comes to dispute resolution concerning issues such as parenting arrangements or property division, our lawyers provide honest and comprehensive advice to clients to ensure that they can make informed decisions at every stage of the process. We work with clients to develop efficient, cost-effective strategies to help them move forward. To schedule a consultation with a member of our family law team, contact us by phone at 604-687-2277 or reach out online.