“The Supreme Court of Canada recently wrote in Barendregt v. Grebliunas, 2022 SCC 22 (CanLII), [2021] S.C.J. No. 101, that its decision in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 has, for over 25 years, “been the governing authority for mobility applications.”
In Gordon, the Supreme Court “set out a two-stage inquiry for determining whether to vary a parenting order under the Divorce Act and permit a custodial parent to relocate with the child: first, the party seeking a variation must show a material change in the child’s circumstances; second, the judge must determine what order reflects the child’s best interests in the new circumstances.” (Barendregt, para. 106)
The Supreme Court further wrote in Barendregt that when mobility issues are raised at first instance, as in this case, “[w]ithout a pre-existing judicial determination, a parent’s desire to relocate is simply part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child.”
As the Supreme Court also noted in Barendregt, since the decision in Gordon, both the Divorce Act and relevant legislation in several provinces had been amended to provide a statutory regime governing relocation applications.
That is the case in Ontario, where the statutory provisions concerning relocation contained in the Children’s Law Reform Act are, for all intents and purposes, identical to those set out in the Divorce Act, with the exception being that the Children’s Law Reform Act contains a provision allowing the service of a notice objecting to a proposed relocation.
Maria’s application seeks relief under both the Divorce Act and the Children’s Law Reform Act.
Neither the requirement to give notice of an intent to relocate nor the ability to object to the proposed relocation are in issue in this case. Accordingly, the provisions that are in the Divorce Act shall be those to which I refer in the balance of this endorsement.
Legislation
Section 16.9 of the Divorce Act provides:
Relocation
16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.
…
16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if
(a) the relocation is authorized by a court; or
…
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) 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;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) 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
(g) 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.
(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.
Section 16 of the Divorce Act provides:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.
The effect of s. 16.92(1) is that, in deciding whether to authorize C.’s relocation with Maria, I must consider both the relevant statutory factors pertaining to C.’s best interests, as set out in ss. 16(3), (4) and (6) of the Divorce Act, as well as the factors related to the proposed relocation set out in s. 16.92(1) thereof.
Onus
Before doing so, however, I must consider the issue of onus in this case, as it is specifically addressed in s. 16.93 of the Divorce Act, which provides:
16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
The parties disagree on the issue of onus.
It is clear that there is no order or arbitral award in place at this time. So, the question becomes, is there an agreement to which one can look for guidance on which subsection of s.16.93 applies.
It is Maria’s position that the parties are governed by s.16.93(2) because they are substantially complying with an agreement which provides that C. spends the vast majority of her time in her care. She is the party who intends to relocate. Accordingly, Maria submits that under s.16.93(2), Jeffrey, as the party opposing the relocation, has the burden of proving that it would not be in the best interests of C.
Maria’s counsel submits that there is an agreement that has C. substantially in her care because the parties have incrementally increased Jeffrey’s parenting time with C. since the separation, which left C. primarily in Maria’s care. In Maria’s submission, each incremental increase in Jeffrey’s parenting time is the result of an agreement, the underlying core of which has C. in Maria’s primary care.
Jeffrey takes the position that s. 16.93(1) applies. He submits that Maria bears the onus of establishing that the relocation would be in the best interests of C. since Maria is the proponent of the relocation.
Jeffrey’s position is that he has been trying to secure a 50/50 parenting agreement since virtually the moment of the parties’ separation, only to be met by either express or passive resistance by Maria to his proposals. As he sees it, he has been compelled, reluctantly, to accept the incremental increases which have been doled out to him.
Jeffrey’s submission in favour of relying on s. 16.93(1), if one is to find an “agreement” in existence, is that the agreement to be relied upon is that which underlay the status quo which existed before the parties separated. That status quo had C. residing with both parents, with each having a hand in her care. As parents each having equal parenting rights with respect to their child, it is Jeffrey’s position that any tacit agreement arising from that status quo contemplated C. spending “substantially equal time in the care of each” of him and Maria, as he has also claimed in his evidence.
Counsel cited, in support of this submission, the decision in Balke v. O’Connor, [2017] O.J. No. 2500 where Justice W.D. Newton wrote, at para. 14, quoting the decision in Batsinda v. Batsinda, 2013 ONSC 7869:
[28]… In my view…the status quo that is relevant is 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. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp.
Were the debate to end there, there is authority for recognizing that the situation which exists at the time that the court is faced with the question of whether there is an agreement in place for the purposes of s. 16.93 and, if so, in whose favour does it operate, is that which applies when answering both questions and that which governs with respect to onus.
Justice L. Ricchetti addressed this issue in Tariq v. Khan, [2022] O.J. No. 827, writing:
71 The Father submits that the onus in s. 16.93(2) does not apply in this case. The Father submits that the section only applies where there is a court order, arbitral award or a written agreement.
72 I disagree.
73 Had the legislators wanted to limit the application of the subsection to situations where there existed “written agreements” on the primary care (or vast majority) of C.’s care, they could have easily done so. There is no limitation or constraints as to what type of “agreements” are caught by this subsection.
74 It makes no sense that, where there has been a de facto agreement that a child spends the vast majority of their parenting time in the care of one parent, even if existing for years, that parent would not benefit from the reverse onus in this subsection.
75 In this case, there clearly was an “agreement” for the current “care time” by the parents. It is also clear that the Mother has to date had de facto decision making for Zahida. More importantly, there is no agreement on where Zahida was to reside.
76 In my view, the onus provision in the Divorce Act applies.”