• by Samantha Rich
Originally published in the OFLM 2023-10 edition
Justice Chang’s decision of Shearhart v. Shearhart (2023 ONSC 4931) is an instructive illustration of the factors the court is obliged to assess when considering a relocation application. The focus in this article is the best interests of the child requirement as well as the burden of proof for the parent relocating and the parent objecting to a relocation proposal. In Shearhart, Justice Chang considers and applies the factors as set out in the Divorce Act as well as the leading jurisprudence on relocation cases in considering whether the relocation application is in the best interests of the children.
Definition of Relocation
Section 2(1) of the Divorce Act defines relocation as:
…a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility - or who has a pending application for a parenting order - that is likely to have a significant impact on the child's relationship with
- a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
- b) a person who has contact with the child under a contact order.
Notice Period Required for Proposed Relocation
Section 16.9(1) of the Divorce Act provides that:
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. (emphasis added)
Best Interests of the Child Requirement – Divorce Act
Section 16.92 (1) of the Divorce Act sets out the factors the court is obliged to take into consideration when considering whether a proposed relocation meets the requirement of being in the best interests of the child:
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.
Best Interests of the Child Requirement – Jurisprudence
At paragraph 14, Justice Chang cites the Supreme Court decision of Barendregt v. Grebliunas (2022 SCC 22), in discussing the factors which the court must consider when assessing whether the proposed relocation is in the children’s best interests:
In determining whether or not a relocation should be authorized, "the crucial question is whether relocation is in the best interests of the child, having regard to the child's physical, emotional and psychological safety, security and well- being", which is a highly fact-specific and discretionary inquiry … The court must consider the best interests of the particular child in the particular circumstances of the case ...
Justice Chang applied the Barendregt factors in making his determination on whether or not the Applicant’s relocation proposal was in the children’s best interests:
a. the children's views and preferences - the applicant has adduced no evidence that the children's views and preferences favour relocation;
b. the history of caregiving - as outlined above, the applicant has adduced no evidence that childcare arrangements were historically anything other than equal, the parties previously agreed to an order for substantially equal parenting time and they have each sought equal parenting time on these motions;
c. any incidents of family violence - the applicant has adduced no evidence of family violence and the investigations of both the police and the CAS have identified no applicable concerns;
d. the reasons for the relocation - the applicant's stated reasons for relocation are that her "friend group" is in Brampton, the family … previously lived in Brampton before moving to Oakville seven years ago and the cost of housing, none of which is supported by any evidence that her proposed relocation is in the children's best interests;
e. the impact of the relocation on the child - the applicant has adduced no evidence that the impact of her proposed relocation will positively impact the children;
f. the amount of parenting time spent with the child and the level of the parties' involvement in the child's life - as outlined above, the applicant has failed to adduce any evidence that the parties' parenting time and level of involvement in the children's life has been anything other than substantially equal;
There are two competing and interdependent factors at play in relocation applications: the reasons for the relocation and the impact of the relocation on the child. This was aptly noted by Justice Akazaki in Shipton v. Shipton (2023 ONSC 1342 at para. 57):
… My assessment of the evidence focuses on these two important factors, although the entirety of both lists are intended to require the court to engage in a holistic assessment of interdependent factors.
Justice Akazaki in Shipton, also highlighted that when assessing the various factors against the relocation proposal, one needs to look at the particular child and the particular circumstances when making a decision, he stated that, “the court must consider the proposed relocation site in terms of the best interests of a particular child whom the court would be committing to a particular locale until she reaches adulthood.”
Justice Nieckarz in B.S. v. K.S. (2023 ONSC 3366 at para. 67) elaborated on the consideration of family violence as a factor when deciding a relocation application:
With respect to the allegations of family violence, the inclusion of this factor in the best interests of the child test in the legislation recognizes the significant impact on children when family violence is present in a home. Violence is not merely physical harm, but can be verbal or emotional abuse, coercive or controlling behaviour, or actions that compromise the safety of a child or spouse.
Justice Laskin in Reeves v. Brand (2018 ONCA 263 at para. 17) discussed the balancing act which courts have to employ when deciding relocation applications:
Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent's legitimate interest in relocating with the non-custodial parent's legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.
Burden of Proof in Relocation Applications
Justice Chang at para. 18 discussed the applicable burdens of proof for a relocation application:
a. where there is substantial compliance with a court order, arbitral award or agreement that provides that the child spend substantially equal time in the care of each party, the party intending to relocate the child has the burden of proving that the relocation would be in the child's best interests …
b. where there is substantial compliance with a court order, arbitral award or agreement that provides that the child spend the vast majority of their time in the care of the party intending to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the child's best interests…; and
c. in all other cases, the parties share the burden of proving whether the relocation is in the child's best interests ...
Justice Akazaki in Shipton discussed the rationale behind subsection 16.93(2) of the Divorce Act at paragraph 102:
… The effect of subsection (2) is essentially to protect a custodial parent from being controlled by a relatively uninvolved ex-spouse by discouraging objections made in bad faith …
In Barendregt, the SCC also discussed in what circumstances a relocation order is likely to be approved at paragraph 121:
… In practice, a move is more likely to be approved where the clear primary caregiver for a child seeks to relocate and more likely to be denied if there is a shared parenting arrangement. Professor Thompson refers to this as the unspoken "primary caregiver presumption"…
Therefore, in all cases, the history of caregiving will be relevant. In terms of the practicality of an interim motion for relocation, Justice Fraser in Wyatt v. Silliphant (2023 ONSC 4710 at paras. 51-53) discussed the reservations courts have in permitting relocation applications on a temporary basis:
Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. Allowing a move prior to determining the issues on a final basis necessarily creates the risk that the lives of children will be disrupted when that result may cause further disruption later if the order is reversed. This is particularly so when the proposed relocation involves a great distance.
Therefore, on an interim motion, the status quo should not be lightly interfered with unless there are compelling reasons to do so.
In Sohal v. Bhattal (2023 ONSC 4148 at para. 15), Justice Gibson elaborated further on the inherent difficulty courts are faced with interim relocation motions:
Interim mobility rights motions are inherently very difficult due to the fact that the court does not have a full record of evidence before it upon which to base the decision … in the present case the many affidavits filed contain conflicting evidence, and no cross-examination has yet been held … the relatively small scope of information and evidence available on an interim motion, and the very nature of temporary orders, means that such orders are meant to be "Band-Aids" for the parties: the purpose of an interim order is to provide a solution to a problem that is reasonably acceptable in the circumstances to get the parties through to trial where the issues will be canvassed more thoroughly based on a full evidentiary record.
In Shearhart v. Shearhart, Justice Chang found that the Applicant failed to satisfy the burden of demonstrating compelling circumstances that justified the proposed relocation.
After considering the factors enumerated in the Divorce Act as well as leading jurisprudence, Justice Chang was not satisfied that the Applicant’s proposed relocation was in the children’s best interests. He found that the Applicant presented insufficient evidence to prove that the relocation would be in the children's best interests. In fact, he stated that the evidence indicated quite the contrary.
Moreover, Justice Chang stated that the Applicant’s proposed relocation to Brampton would result in a ‘much greater geographic distance’ between the Applicant and the Respondent’s residence in Oakville. Justice Chang cited Barendregt, stating that geographic distance "reduces flexibility, disrupts established patterns, and inevitably impacts the relationship between a parent and a child."
With the ultimate consideration being the best interests of the children, Justice Chang denied the Applicant’s request for relocation.
The case of Shearhart v. Shearhart illustrates the application of the best interests factors as well as reviewing the SCC decision of Barendregt v. Grebliunas.
Understandably, in relocation cases the court has the important task of assessing a parent’s relocation proposal carefully. The court must assess the past and present status quo to determine whether or not the future relocation proposal takes into account the child’s physical, emotional and psychological safety, security and well-being. The court’s assessment is very much fact-based as the court has to take into account the particular child and the particular proposed location the child would be relocating to in making a decision. We see the court exercising the utmost respect for all parties who have parenting time with the child to ensure that those relationships are maintained and fostered.
Parents relocate for a number of reasons, such as better career prospects or being closer to family for emotional support. While a parent’s reasons for relocating are to be considered and respected, those reasons cannot trump the child’s best interests, including their relationship with the other parent, schooling and community, among others.
Therefore, if you are retained by a party seeking to relocate, we suggest to thoroughly prepare your client’s case based on the evidence and the relevant legal decisions as discussed above.