Separation or divorce is difficult and emotional. It changes family dynamics and how the couple parents their children. It can be particularly difficult when one parent wishes to relocate with the children, for example, to be closer to family or take up employment opportunities elsewhere. This will affect the other parent’s access.
This article looks at how the court goes about deciding whether to allow relocation if the parents are unable to agree. We also look at a recent decision of the Supreme Court of Canada, in which a mother sought to relocate her children from Kelowna to northern British Columbia.
How does the court decide whether to permit relocation?
Under section 46 of the Family Law Act, if there is no agreement or order, the court determines the parenting arrangements that would be in the best interests of the child, by considering various factors including:
- the reasons for the change in the location of the child’s residence;
- the child’s health and emotional well-being;
- the child’s views, unless it would be inappropriate to consider them;
- the history of the child’s care;
- the child’s need for stability; and
- the ability of each parent to exercise their parental responsibilities.
The court must not consider whether the parent who is planning to move would do so without the child.
Mother seeks to relocate children from Kelowna to Telkwa
In Barendregt v Grebliunas, the mother and father married, bought a house in Kelowna and had two boys. In 2018, the relationship ended when the father “likely” assaulted the mother. The mother fled to her parents’ home in Telkwa.
The parenting arrangement that emerged in the aftermath, as formalized in an interim order, split parenting time between the parents, alternately in Telkwa and Kelowna. They then agreed to keep the children in Kelowna with the father. When the mother returned to Kelowna, they were to alternate weekly parenting time. But she did not return.
The mother sought to relocate the children to Telkwa. By the time of the trial, the house in Kelowna remained an ongoing construction project.
Trial judge allows relocation; Court of Appeal overturns decision
Justice Saunders of the Supreme Court of British Columbia awarded the mother primary residence, concluding that relocation would promote the children’s best interests. The main issue favouring the move was the parties’ acrimonious relationship – the father’s continuing animosity towards the mother meant it was unlikely they could collaborate to promote the children’s best interests.
A less significant issue was the parties’ financial situation. The house required finance to make it habitable and the judge was unsure of the father’s ability to remain there, or even in Kelowna.
The Court of Appeal for British Columbia sided with the father, deciding that the children’s best interests were best served by staying in Kelowna with both parents. The Court decided to admit additional evidence of the father’s financial situation that had not existed at the time of trial, such as information about a line of credit to finance renovations to the house.
Supreme Court decides that additional evidence should generally not be admitted
The mother appealed, with the main issue before the Supreme Court of Canada being whether the Court of Appeal should have admitted the father’s additional financial evidence on appeal.
Justice Karakatsanis, writing for the majority, decided that regardless of whether the evidence related to facts occurring before or after trial, the test laid down in the case of Palmer needed to be applied to determine whether additional evidence could be admitted on appeal. For evidence to be admitted under this test, it must not, by the exercise of due diligence, have been obtained for the trial, and it must also be relevant, credible and could have affected the result at trial.
Her Honour explained that when considering the best interests of a child, certainty is very important so evidence that does not satisfy the due diligence criterion should generally not be admitted. This was particularly the case given that admission of post-trial evidence may be unnecessary because there are statutory variation schemes that permit a judge to vary a parenting order where a change of circumstances justifies a review of a child’s best interests.
Supreme Court restores trial judge decision; permits relocation
Justice Karakatsanis decided that the Court of Appeal erred by admitting the additional evidence. The father’s evidence could have been available for trial with due diligence, for example, he could have taken reasonable steps to obtain financing before trial, since he was aware that he needed to refinance to stay in the house.
The Supreme Court then examined whether the trial judge erred in allowing the mother’s application to relocate. Her Honour, after noting the importance of deference in parenting cases, decided that the trial judge’s analysis was free from error. Various factors, such as the significant risk that the high-conflict nature of the parents’ relationship would impact the children if they stayed in Kelowna and the mother’s need for family support, supported the decision to allow relocation.
The Supreme Court restored the trial judge’s decision, allowing the mother to relocate with the children.
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