To move or not to move to Alberta – a summary judgment

• by Samantha Rich

Originally published in the OFLM 2024-01 edition

Overview

In the case of Tremblay v. Shadwell (2023 ONSC 6689), the mother brought a summary judgment motion under Rule 16 of the Family Law Rules. In particular, the mother requested the permission of the court to move back to her home province, Alberta, with her children along with the parties’ three-year-old son.  The father objected to the relocation.

The court carefully reviewed the mother’s reasons for moving, which included a better support system as well as her psychological wellbeing. The court also reiterated that these and other important factors are weighed against a non-moving claim to spend as much time with their child as possible. This was especially true in this case where the father’s parenting plan was lacking.

The court found that the mother was permitted to move to Alberta with the child and also granted the mother primary care and decision-making. The father was granted parenting time and a dollar-for-dollar credit against his support for his parenting time costs.

Background

The parties had a brief relationship that resulted in the birth of a child that lived with the mother since birth. The father moved out of the parties’ home a month after discovering that the mother was pregnant. Initially, the father had little to do with the child and only became involved after a DNA test proved his parentage.

The father had parenting time with the child every second weekend pursuant to an agreement made between the parties which was made more than a year after the child’s birth. The father exercised his parenting time consistently pursuant to the agreement.

The mother subsequently decided to move back to Alberta to be closer to family. The mother brought the mobility motion on an urgent basis as the closing of the sale of her home was imminent.

Best Interests of the Child

The court determined that this matter was essentially a relocation motion (at para. 9).

As the parties were not married, the best interests of the child were determined under the Children's Law Reform Act (the "CLRA").

Section 39.4(3) of the CLRA requires the court to take into account the best interests of the child in accordance with section 24 as well as the following factors:

(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 is an applicant for a parenting order with respect to the child, 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 has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;

(e) the existence of an order, family arbitration 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 decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and

(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance (at para. 10).

Justice McDermot determined that as there was no family violence or outstanding orders concerning the child, sections 39(3)(e) and 24(j) and (k) were irrelevant in the matter. Section 24(3)(e) also was not relevant as the child was too young to express his views and preferences (at para. 12).

Onus of Proof

Justice McDermot succinctly set out the onus of proof required. Under section 39.4(4) of the CLRA, if care of the child is shared equally, the onus is on the party seeking to move to prove that the move is in the child's best interests.

However, under section 39.4(6), if the parties are complying with an agreement that provides that the child spends the "vast majority of time in the care of the party who intends to relocate the child", the onus shifts to the party objecting to the move to demonstrate why it is in the child's best interests not to move.

If the time sharing is unclear or somewhere between these extremes, both parties bear an onus to address whether the relocation is in the best interests of the child (at para. 13).

It is noteworthy that the provision in the CLRA with respect to the burden of proof at section 39.4 are identical to the Divorce Act provisions at section 16.93. (For more on the Divorce Act provisions, please see David Tobin’s article, “How do we define time in the Divorce Act” found above (OFLM 2024-1).

Summary Judgment Motion

Justice McDermot affirmed that although the mother sought a final order, the criteria to be addressed by the court would largely be the same whether the order was final or not (at para. 14). Furthermore, the Supreme Court of Canada in Berendregt v. Grebliunas (2022 SCC 22) stated at paragraph 112 that, "Without 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."

Justice McDermot summarized Family Law Rule 16 stating that the moving party is required to:

… provide evidence, by way of affidavit or otherwise, containing "specific facts showing there is no genuine issue requiring a trial." That evidence must be met by the responding party not relying on "mere allegations or denials" but evidence of "specific facts showing that there is a genuine issue for trial". … Hearsay evidence is discouraged … and the court now has powers to weigh the evidence, evaluate credibility and drawing inferences from the evidence … (at para. 17)

 

Justice McDermot cited the seminal case of Hryniak v. Maudlin (2014 SCC 7) addressing these powers in the context of Rule 20 of the Rules of Civil Procedure, which are similar to Rule 16 of the Family Law Rules:

… the touchstone in a summary judgment motion is fairness: is the court able to make an accurate determination of fact on the basis of the written record? If so, then a decision on the motion is fair and proportionate considering the issues before the court. If not, then the court can have recourse to the powers under r. 16(6.1) in assessing the evidence of the parties prior to dismissing the motion or ordering a trial (at para. 18)

The court also cited Justice Spence’s decision in Yousuf v. Shoaib (2007 ONCJ 80), noting that the test on an interim motion for mobility is the same as that for summary judgment (at para. 19).

Furthermore, Justice McDermot noted that “courts are reluctant to grant interim mobility motions, which often seriously disrupt the lives of children, where there is a genuine issue for trial, thereby creating the potential for disrupting the child's life once again, should the outcome at trial require the child to return to the city where he or she formerly lived.” (at para. 19)

The court also reminded us that Rule 16(4.1) requires the party responding to a motion for summary judgment to put their "best foot forward" and provide the court with the evidence which they would have led at trial. It is also assumed that all of the evidence that a litigant would present at trial is contained in their affidavit (at para. 20).

Decision

Justice McDermot found the following:

-          the mother had been the child’s primary caregiver since birth and had exercised decision-making authority concerning him (at paras. 29 - 30). The parties did not communicate well and were unable to co-parent effectively.

-          The mother did not have a support system or employment keeping her in Ontario (at paras. 32 - 33). The mother provided a plan for parenting time for the father including half of the summers as well as any time the father wishes to spend with the child in Alberta (at para. 34).

Ultimately, Justice McDermot decided that the mother made a prima facie case supporting the relocation to Alberta (at para. 36).

Furthermore, the court found that the father’s negative view of the mother would eventually be reflected back to the child and that the father would potentially not encourage the relationship between the mother and the child if he were placed in his care. The father also did not have a thought-out parenting plan if the child were to remain with him in Ontario (at paras. 47- 49).

Justice McDermot determined the father to lack empathy regarding the mother’s mental health issues. The father also did not present any of his own evidence regarding the mother’s mental health and how that negatively impacts her parenting. The court found that despite the mother’s mental health issues, she was still able to address her children’s best interests (at para. 50).

Furthermore, Justice McDermot did not find the father’s claim to be a genuine issue for trial. He cited Justice Laskin’s decision in Reeves v. Brand (2018 ONCA 263)  asserting that a mobility case involves balancing competing interests in the best interests of the child:

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. (at para. 64)

 

Justice McDermot emphasized the father’s lack of evidence for his claims. He found that the father did not satisfy his onus to prove that the move is not in the child’s best interests. He determined that the father bears the responsibility of responding to the summary judgment motion and meeting his onus to prove on the balance of probabilities that the relocation is not in the child's best interests. He found that the father had not met his onus in this respect (at paras. 65 – 66).

Justice McDermot concluded that, “on balance, any disadvantage to the child resulting from reduction in parenting time with the father is made up by the obvious benefits to the child in relocating to Alberta with his mother” (at para. 68).

Discussion & Conclusion

In Tremblay, Justice McDermot placed a lot of weight on the fact that the mother as the primary caregiver of the child did not have a support system in Ontario. This is congruent with decisions in other relocation applications. For example, Justice Diamond in Reeves v. Brand (2017 ONSC 2306) granted a relocation where the court noted that, “Terri is returning home to where her support system is, and has always been” and “Terri wants to surround herself with the social (and possible financial) support of her family and friends with a view to regaining control and independence of her life” (at paras. 63 - 64). It is clear that Justice Diamond placed great weight on the applicant being close to her support system in making a decision.

However, it should be noted that the mere claim to want to relocate to be closer to one’s support system will not always guarantee the court granting a relocation order in a moving parent’s favour. Justice Chiappetta in Knop v. Nezami (2016 ONSC 3179), dismissed the mother's application to relocate with the child despite the mother citing one of the reasons of wanting to relocate with the child was to be closer to her family (at para. 144).

A lesson to take from Justice McDermot’s decision in Tremblay is to ensure that sufficient evidence is presented to the court when applying for relocation as well as responding to a relocation application on your client’s behalf. It will not be enough to simply object to a relocation application without sufficient evidence indicating why it would not be in the child’s best interests.

The court has a careful balancing act to maintain when making determinations in relocation matters. The court needs to be cognizant of the moving parent’s reasons for moving, such as better employment, being closer to a support system as well as a parent’s psychological wellbeing. These important factors in favour of a moving parent need to be weighed against a non-moving parent’s right to spend as much time with their child as possible. In this matter, we see that Justice McDermot placed value on the mother providing a parenting time plan recognizing the importance of the father spending time with the child. Contrasted with this, we see the court’s express displeasure with the father’s lack of parenting plan when he put forward his claim for primary care of the child.

Yet again, Tremblay reminds us that when courts decide relocation cases, they will revolve around the best interests of the child principles and good old fashion evidence.