MEMO TO:
Alexsei Demo
RESEARCH ID:
#40006423ac5cb5
JURISDICTION:
Ontario, Canada
ANSWERED ON:
March 3, 2022

Issue:

How have the courts decided cases where one parent seeks to relocate the child to the United States, where the parent requesting to move has repartnered and the new partner has a job offer there?

Facts:

The child is 6 years old. The non-moving parent has regular court-ordered parenting time. The moving parent has re-partnered and the new partner has a job offer in New York City. The non-moving parent's extended family lives in Toronto and has a close relationship to the child.

Conclusion:

Divorce Act

Relocation decisions are governed by the new provisions of the Divorce Act which came into force on March 1, 2021. Subsection 16(1) of the Divorce Act requires any parenting order to be determined by taking into consideration only the best interests of the child. In determining the child’s best interests, the Court is required to give primary consideration to the child’s physical, emotional and psychological safety, security, and well-being, while considering all factors related to the circumstances of the child: ss. 16(2)-16(3). A non-exhaustive list of factors to be considered in determining the child’s best interests is set out in subsection 16(3) of the Divorce ActThe principle that a child should have as much contact as possible with each parent remains a part of the court’s best interests considerations. The Divorce Acts new relocation provisions require, before any move with a child, specific advance notice by a person with decision-making responsibility regarding that child. If there is no agreement there is to be a court hearing. Subsection 16.92(1) of the Divorce Act sets out additional factors that are to be considered in determining the best interests of a child where relocation is requested.  (Siddiqi v. Khan)

The new Divorce Act provisions establish a process for dealing with how the Court will consider mobility applications made by parents with decision-making authority. Notice must normally be given to the other parent of any move, regardless of whether it is a relocation, unless the Court orders otherwise. The Court has a discretion to order otherwise in cases where the Court views it appropriate, but the section specifically mentions domestic violence as a factor the Court should consider in exercising that discretion. (Apa v. Vagadia)

The recent amendments to the Divorce Act set out the factors to be considered in determining the best interests of the child when making a parenting order and additional factors to be considered when a parent is seeking authority to relocate (ss. 16(3) and 16.92). This framework of analysis, as codified, replaces the common law test set out by the Supreme Court of Canada in Gordon v. Goertz. The legislation appears to now set out a complete guide for the court to follow when faced with these very challenging applications. (Al Kowatli v. Berrwin)

The Divorce Act requires the court to consider a series of issues as follows:

a) Has notice been given by the parent seeking to move the children?

b) Does the move amount to a relocation?

c) If so, is the move in the best interests of the children? (Al Kowatli v. Berrwin)

Children's Law Reform Act

The Children's Law Reform Act amendments largely mirror amendments to the Divorce Act. (O'Brien v. Chuluunbaatar)

The new Children's Law Reform Act clarifies that the court must, in applying the best interests test, consider all of the factors relating to the circumstances of the child, but must give primary consideration to the child’s physical, emotional and psychological safety, security and well being. (Rudichuk v. Higgins)

In O'Brien v. Chuluunbaatar, the mother was 43 years old and was from Mongolia. In Mongolia, she worked as an economic analyst, a financial sector specialist, and a consultant for various international companies. She immigrated to Canada in January 2010. She was unable to find stable employment in Canada, and, at the time of the trial, was unemployed. The father was 43 years old and born and raised in Peterborough, Ontario. The parties separated when the child was about nine months old. The mother was the child's primary caregiver, and, based on a consent order, had sole custody of the child. In July 2018, the mother brought a motion to change the terms of the Consent Order so that she and the child could relocate to Ulaanbaatar, Mongolia. The mother asked that the father's access be adjusted and offered to provide him with extensive access at Christmas and during the school summer vacation, as well as at other times, both in Toronto and Mongolia. The father opposed the Motion and sought an order for joint custody. The trial judge found that the relocation was in the child's best interests, and she permitted the mother to relocate, with the child, to Mongolia. The father appealed to the Superior Court of Justice. The appeal judge reversed the trial decision, finding that the trial judge erred in focusing on the mother's reasons for relocation, rather than on whether the relocation was in the child's best interests, and that the trial judge had not given proper effect to the "maximum contact" principle. The Court of Appeal allowed the appeal and restored the trial judge's Order, finding that the trial judge made no error in her application of the test for relocation.

In Bourke v. Davis, the parties were married in 2012 and had two sons. The parties separated in 2017, with the children remaining with the respondent in the matrimonial home, and subsequently divorced. The respondent married a United States resident in 2018 and they had a child together. With the onset of the COVID-19 pandemic, the respondent's husband arranged to work in Ontario and obtained a Canadian work visa that expired in December 2020 and could not be extended. The respondent sought an order allowing her to move with the children to Washington State. The trial judge accepted the respondent's position that she intended to move to Washington with or without the children, and so rejected the investigator's recommendation on the mobility question, premised as it was on the respondent remaining in Ontario. Allowing the children to move with the respondent, with generous and liberal access to the appellant, was found to be in the children's best interests. Feldman J.A. held that the trial judge did not err by relying on the respondent's position that she would move to Washington with or without the children. The respondent was clear with the court that she had made a very difficult decision to go to Washington with her husband and baby from an employment and financial point of view. She put forward three parenting plans, none of which contemplated her remaining in Ontario. The trial judge was not only entitled but obliged to accept the fact that the status quo was not an option. Because the appellant did not put forward a parenting plan, the judge was limited in the analysis that he could conduct for the children's best interests.

In A.E. v. A.B., the mother wished to relocate with the children to Ohio, to be with her new partner and his daughters. Jarvis J. granted the move on the grounds that the children were closer emotionally and psychologically to their mother than their father.

Law:

Section 39.4(3) of the Children's Law Reform Act, RSO 1990, c C.12 provides that, in determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as other factors, as follows:

Best interests of the child

(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,

(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. 2020, c. 25, Sched. 1, s. 15.

Pursuant to s. 24(2)of the Children's Law Reform Act, RSO 1990, c C.12, in determining the best interests of the child, the court is mandated to give primary consideration to the following:

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

The best interest considerations are listed in s. 24(3) of the Children's Law Reform Act, RSO 1990, c C.12 as follows:

Factors

(3) Factors related to the circumstances of a child include,

(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(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 co-operate, 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 co-operate 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. 2020, c. 25, Sched. 1, s. 6.

Section 16.92(1) of the Divorce Act, RSC 1985, c 3 (2nd Supp) sets out additional factors to be considered in the best interests of the child when the court is deciding whether to authorize a relocation of a child of the marriage:

Best interests of child — additional factors to be considered

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.

Pursuant to s. 16(2) of the Divorce Act, RSC 1985, c 3 (2nd Supp), in determining the best interests of the child, the court is mandated to give primary consideration to the following:

Primary consideration

(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.

The best interest considerations are listed in s. 16(3) of the Divorce Act, RSC 1985, c 3 (2nd Supp) as follows:

Factors

(3) Factors related to the circumstances of a child include,

(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(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 co-operate, 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 co-operate 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. 2020, c. 25, Sched. 1, s. 6.

[17] One major development is that the law that deals with the major claims in this case was changed, quite drastically and recently. There is little to no jurisprudence under the new CLRA to date. However, this case is governed by its provisions.

[...]

[19] The existing law which has not been changed is that any decision that this court makes is one that must be in the best interests of the children. Section 24 of the CLRA requires the court to take only the best interests of the children into account in making a parenting order or contact order. I take the primary residence provisions of the Parent order, particularly as it set out times and days of the children with each parent, to be orders related to “parenting times” (referred to as PT). The Parent order also deals with primary residence and secondary residence, but there does not appear to be any statutory definition of either in the CLRA. Other jurists have often used similar terminology (eg primary, principal, main) but often without any explicit reasons why such adjective was used to describe residency of a child.

[...]

[21] The new CLRA clarifies that the court must, in applying the best interests test, consider all of the factors relating to the circumstances of the child, but must give primary consideration to the child’s physical, emotional and psychological safety, security and well being. This is a new provision not found in the former CLRA.

S. 24(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

The mother, who was the primary parent, sought to relocate with the two children to Scarborough from Brampton. The mother and been residing in the maternal grandparent's home in Brampton, but the home had been sold. The mother accepted a job in Toronto as a property manager and was going to move in with her partner in Scarborough. The Court found that there was a compelling reason for relocating. The Court considered that the factors laid out in the Children's Law Reform Act favoured each of the mother and the father in varying degrees insofar as the relocation decisions concerned.

The Court considered the best interests of the children as follows:

[36] Fortunately, there is considerable evidence to enable the court to come to a decision on relocation.

[37] Among this evidence is a Report of the Office of the Children’s Lawyer’s ((the OCL) Clinical Investigator that both parties have referenced in their argument and evidence. While the OCL Report was prepared for the trial, when one takes place, and not for these interim motions, I do refer to portions of the report as it provides information of the views and wishes of the children, a factor the court is mandated to consider. Moreover, I consider these less partisan than if coming from the parties or their supporters. Also of note, is that the father has disputed the OCL Report for his own reasons, although not the entire report. He plans to cross examine the author at trial, another indication that a trial is not only likely, but almost inevitable.

[38] Secondly, this court has to keep in mind what its task is with respect to these motions. It is to maintain the status quo unless some compelling reason(s) dictates that the status quo must be changed. So let us examine the compelling reason(s).

[39] The main one is that the home of the maternal grandparents is sold with a closing date of the end of August 2021. The grandparents advised the mother in late May that they were selling and they accepted an offer quickly after that. The have a less spacious residence in the Beaches area of Toronto which is not all that far from the mother’s proposed residence in Scarborough. This means that the mother and the children are dispossessed of their present home come September. But the mother is not planning to move in with the grandparents in the Beaches. She is planning to move into the home of her “boyfriend/partner” in Scarborough which is a leased and spacious unit she and the children have been at many times since it was acquired in May 2020, well over a year ago.

[40] The grandparental decision to sell and move and the quick closing have prompted the mother to seek court permission to relocate to the other side of Toronto. That this has been her plan all along is not what the father is alleging. He states that she has actually moved to the Scarborough home notwithstanding that her address is still that of her parents in Brampton. In support of this contention, he points out the following and asks the court to infer what he says is true

[41] The mother signed an acceptance (of lease) on May 22, 2020 and is shown thereon as “Tenant 1”. “Tenant 2” is the mother’s partner, Andrew Flynn. He asks the court to disbelieve that the mother only co-signed so that Andrew would qualify financially for the lease of the unit. The mother has not, to date, produced a copy of the lease agreement of the Scarborough property. The lease rent is $4,300 per month. He asks the court to conclude that she is not only a co-tenant, but the prime tenant.

[42] The mother has spent well in excess of $16,000 of her own money at retail locations that are known to sell home furnishings. This spending, as early as May and June 2020, argues the father, can only mean she has been furnishing the Scarborough home in anticipation of her move there.

[43] The mother has admitted that she and the children have spent time at the Scarborough home, including overnights. The extent of the time she and the children have spent there is vague in the evidence but is more than just mere occasional visits. The mother argues that the children have made friends there, which also suggests more than occasional visits. Isla told the OCL investigator that she and her brother and mother spent more time at Andrew’s home after the pandemic started, which was well over a year ago. Ronan speaks of wanting to reduce driving time which I take to mean between Brampton and Scarborough.

[44] The mother has accepted a job in Toronto as a property manager with Trivest Developments in Toronto, half time working from home and half time at their offices. While not impossible, it makes little sense to hold this job living in Brampton, but makes considerably more sense to do it living in Toronto.

[45] Andrew has produced a Toronto Police Record check that is negative for offences and convictions. There is no explanation why this was obtained by him especially as it is dated Sept 21, 2020. The logical inference is that he was planning to live with the mother and her children as a family even back then.

[46] The OCL interviews with the children were done partly at the Scarborough home.

[47] The mother has made no secret of her “partner” relationship with Andrew, that she was planning to move in with him with the children, and that she would be leaving the grandparental home in Brampton to do that. In fact, she made overtures through counsel to discuss that very plan

[48] The mother’s response to the allegation that she has moved is a denial. She points to the OCL report in which both children confirm that they and she still have their home with the maternal grandparents. She admits that she and the children do spend time at the Scarborough home, but have not relocated there. She has been consistent in this explanation for over a year and perhaps with some justification. However, as September 2021 approaches, she will no longer be able to maintain this argument.

[49] The mother’s position is reminiscent of the mother on social assistance whose boyfriend/partner hangs around her home reaping the benefits of quasi residing with her, but is technically not cohabiting with her. This is an often seen ‘fiction’ that is put to social assistance benefits entities who continue to provide assistance to the mother as if she was still living alone.

[50] The evidence convinces me that the mother and her two children are living in two locations, in Brampton and in Scarborough. That the mother technically has her home with her grandparents is now a yesterday story. She has no Brampton residence once the sale closes and, in absence of evidence of any other residential location, I infer that she and the children are thereafter living with Andrew in Scarborough.

[51] Why that is of importance is twofold. First, it is she who is disrupting the status quo. Secondly, she is relying on the sale by her grandparents of their Brampton home, a circumstance beyond her control, as the main “compelling circumstance” to justify relocation.

[52] I must admit that what she is doing makes good fiscal sense. To move from a rent free grandparental home to another rent free partner home is logical (if in fact, she is going to pay nothing towards the lease costs there). It also makes sense from an employment viewpoint to be close to her workplace which she would not be in Brampton. It also shows good preparation so that her partner is not a stranger to her children, and his residence is familiar, comfortable and furnished in preparation for their formal move there.

[53] The only thing is that the father is now faced with the children being in Scarborough on the opposite side of Toronto, rather than in the same city where they have technically been to date - Brampton, where he continues to reside. This disrupts the status quo in several ways including transportation, PT time availability, and particularly schooling of the children, not to mention the children’s Brampton based friendships and school acquaintanceships and their recreational and other social activities.

[54] My conclusion is that there is a compelling reason for relocating. That the relocation is to Scarborough has been a path that the mother has wisely smoothed in advance and tried to minimize the disruptive aspects. She has also tried to compensate for any lost parenting time that the father and children might suffer under the current order by offering modest additional time to cover increased travel time.

[55] One might be tempted to speculate that the mother should have found or at least looked for another place in Brampton until the trial of this proceeding. She has a new job with a pay range claimed by the father to be $85,000 annually and, with the child tax benefits, and the child support he pays, her annual revenue is likely in excess of $100,000, plenty enough to rent a modest residence in Brampton until a trial is concluded. But she has not even looked.

[56] The inescapable fact is that the mother has disrupted the status quo. This court accepts that it was for a compelling reason that she must relocate. It also accepts that the Scarborough home is a logical move in the circumstances What this court does not accept is that it is in the best interest of the children to simply permit that move having regard to the prevailing factual circumstances and the tests that the court must apply.

[57] As a third consideration, I look at the factors listed in S.39.4(3). Not all apply, but in this case, clauses (a) , (b) (c) and (f) impact on this determination. The reason for the relocation is loss of the mother’s present residential accommodations, her acquisition of a new and relatively well paying job, and her desire to join her partner and live with her children in a new family setting. The impact on her children will be

➢ a new school, new teachers, new school and new neighbourhood friends

➢ more travel time to Brampton to be with their father and back

➢ loss of friends and acquaintances in Brampton

➢ loss of established recreational and extracurricular activities

➢ loss of living in the bosom of the maternal family (eg grandparents/uncle)

➢ less to do when with their father (eg soccer / dance classes)

[58]  The children have spent approximately 80% of their time with their mother and 20% with their father. The mother was a stay at home mother, was employed as a bartender for a time (likely after the bedtime of the children) and now is a full time employee Monday through Friday albeit working from home half of that time. The father works most of his time out of his home and part out of his office. The mother’s proposal for extra time to the father to cover more time travelling is ostensibly reasonable, but not so reasonable in the present circumstances. How the father ended up with only 20% of the PT is a mystery as no explanation is available other than a consent incorporated into an order.

[59]  The children attend school remotely by online learning and this appears to be continuing into the 2021-22 academic year. I believe I can take judicial notice that the pandemic continues and that the mother opted to keep them home rather than allow them to attend at school in person. Regardless of where they are enrolled at school, their on line studies can be done equally from the father’s home as from the mother’s home. The father has his mother, the children’s paternal grandmother, who is willing to care for the children if the father’s work requires his attendance elsewhere. In the circumstances, I do not see the mother’s proposal as overly generous in terms of varying paternal parenting time, and it seems to be bound to the time set out in the current order.

[60] Fourthly, the decision for allowing/disallowing relocation is based on s.24(3) considerations that comprise the best interests test. As stated previously, these must be filtered through the primary consideration lens of s.24(2) CLRA. In considering the listed best interest circumstances, I do not plan to examine them individually but find that the following are relevant to their application in this case:

[61] The children love each parent. They enjoy their time with each parent. The parents both were involved in raising the children perhaps to different degrees and in different ways but clearly not as primary caregiver by either parent to the virtual exclusion of the other. The separation obviously changed this dynamic but did not significantly change the way that the children viewed and interacted with their parents.

[62] The children are at ease and comfortable with both parents, with their parents’ new partners (the father has a non cohabitation relationship with Jana who resides in Kitchener) as well Aiden, Andrew’s son who is off to university this year. They are on good terms with grandparents on both sides.

[63] The children’s views and wishes are not well developed in the OCL report but Ronan made the comment in each OCL interview that he wishes the same amount of time with each parent. Isla’s comments are less concrete but it is evident she enjoys her time with each parent and expressed to the OCL investigator that she “wants both of her parents to spend time with her”.

[64] The children are raised in the Catholic faith from their infancy. This is the mother’s religion. The father is not a religious person but has never prevented or argued that the children should not be raised as Catholics. He is said to be an atheist. The children, in addition to attending catholic schools also attend catholic services (mass) when the churches are open again to adherents.

[65] Both parents are able and quite willing to care for and meet the needs of each child. The mother has had the direct assistance of her maternal family although that is now not so direct. The uncle has left the home and the grandparents are some distance away although not that far. The mother also relies on her partner Andrew for help when needed. The father as been mostly present when he has had the children, but he can also rely on his mother, now retired, who lives some distance away, but within easy driving distance. He also can rely on his partner Jana who works entirely from home. I suspect that, like all parents, they both can afford a babysitter when pandemic circumstances permit.

[66]  I am less optimistic that the parties can co-operate and communicate with each other on matters affecting either child. They are clearly polarized and do not see that the other has the best interests of their children uppermost. The father sees the mother as pursuing her wants first and the needs of the children a distant second. The mother sees the father as obstructionist (to what she wants), stubborn and unwilling to make concessions or to even discuss matters with her. This is clearly personal between them and does not extend to their relationships with the children.

[67] I do not believe that there has been any family violence between the parents. The evidence of a suicide attempt by the father is aged, was not seen by police authorities to be an actual attempt, was more situational in nature and the father did obtain medical assistance. The mother, at the time was upset that the police were even called. The mother claims she was subjected to verbal abuse by the father. I see no evidence of that, although both say that their marriage was on the rocks for some time before it disintegrated totally. Many things are said by both spouses at such times, often in anger and frustration.

[68]  There are no other proceedings ongoing. This one is enough

[69] In short, the s.24(3) factors favour each of the mother and the father in varying degrees insofar as the relocation decisions concerned. These are non-exhaustive considerations and the court can also look at others.

Kukurin J. allowed the mother to relocate to Scarborough, but increased the father's parenting time. The children were to live on one-week-on, one-week-off schedule:

[76] I see no reason why the mother cannot live in Scarborough as she clearly wants to do so. I also see no reason why the children cannot live, as I am almost sure that they have been over the past year, partly in Scarborough and partly in Brampton. [4]They could be enrolled in the same school as they were last year. They could do their on line education from either location with their parents or others helping out with childcare or education assistance. They could live one week with each parent and this would minimize travel time, costs and frustration to one trip per week. They would have the advantage of keeping their old friends and making new ones in Scarborough. They could continue with their extracurricular activities as much as a pandemic will allow. This would give both parents a week off from child care to devote to their respective jobs. They would both, of course, keep in contact with their children while they were in the other parent’s care, within reasonable limits. If the mother wishes the children to attend Sunday morning church services, and if she actually takes them there, the court could order that they be with her in Scarborough for Sunday mornings.

In Al Kowatli v. Berrwin, 2021 ONSC 4999 (CanLII) Mills J. held that the recent amendments to the Divorce Act replaced the Gordon v. Goertz-test:

[17] The recent amendments to the Divorce Act set out the factors to be considered in determining the best interests of the child when making a parenting order and additional factors to be considered when a parent is seeking authority to relocate (s. 16(3) and s. 16.92). This framework of analysis, as codified, replaces the common law test set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52. The legislation appears to now set out a complete guide for the court to follow when faced with these very challenging applications.

The mother sought permission to relocate with the child to Lebanon. She wanted to return home to Lebanon where she expected to have a better life with the child and where she will have significant family support. In Canada, she was alone and had struggled to find meaningful employment. Mills J. considered the enumerated factors in s. 16 and s.16.92 of the Divorce Act and found that it was not in the child's best interests to move to Lebanon on the grounds that the parenting plan was poorly defined and there were inadequate assurances that she would be able to maintain a relationship and parenting time with her father:

[31] Ms. Al Kowatli has indicated she will reside with her mother and two sisters in their spacious apartment in Beirut, Lebanon. She proposes to waive her entitlement to spousal and child support which would provide approximately $15,000 per year to the Mr. Berrwin to facilitate extended access with the child in Canada and Lebanon during the school holidays. Mr. Berrwin will also be provided regular access to the child by way of social media and other electronic means. 

[32] I must give primary consideration to the physical, emotional, and psychological safety, security and well-being of the child (s. 16(2)) when determining what is in the best interests of the child.

[33] An examination of the s. 16(3) factors to be considered in determining the best interests of the child follows.

16(3)(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[34] The child is seven years old and has spent the last year living under Covid-19 restrictions. She has some friends in the community but has attended school online under the supervision of her mother since the start of the pandemic. The child remains in virtual contact with the two or three friends she made during the limited time she was physically attending at school She is too young to have formed real and lasting friendships and any efforts in that regard have been hampered by the lengthy pandemic stay at home orders issued by the Government of Ontario. These orders have also impacted the child’s parenting time with her father. As a younger child, she has fewer ties generally to the community. There is no evidence before me to suggest the child has any emotional issues that may dictate a particular need to maintain stability of the current parenting time of four days per month with Mr. Berrwin.

16(3)(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

[35] The child has a strong and positive relationship with her mother. She has limited time with her father, but he expresses a close connection with the child. As the paternal grandmother lives with Mr. Berrwin, the child has regular interactions when she attends for parenting time. 

[36] There is a dispute as to whether the child has a close relationship with her grandmother. Mr. Berrwin relies on a photo taken at the child’s birth to confirm the bond. This is more than seven years old and fails to verify the nature of their current relationship. He has also provided various undated photos and ones taken in March of this year at the child’s birthday celebration. These photos also do not substantiate his evidence that the child has a close relationship with her paternal grandmother. They are simply snapshots taken at various times in the child’s life when her grandmother was present. There was no evidence from the grandmother or any other person to verify the nature of their relationship.

[37] Mr. Berrwin is now in a common law relationship, but his partner resides in Quebec. The child has not developed any meaningful relationship with the new partner.

[38] Ms. Al Kowatli’s mother and sisters have travelled from Lebanon for extended visits. According to Ms. Al Kowatli’s uncontested evidence, they have developed a close bond with the child. There is no independent evidence to support or dispute this evidence.

16(3)(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse

[39] Both parents can be accused of failing to support the development and maintenance of the child’s relationship with the other. Ms. Al Kowatli lives strictly by the terms of the existing court order and has refused to permit any additional parenting time to Mr. Berrwin without a court order. 

[40] When exercising his parenting time, Mr. Berrwin has not willingly facilitated the child having contact with her mother. This is extremely problematic having regard to the age of the child and the clear attachment she has to Ms. Al Kowatli. The evidence as to the traumatic impact on the child of being separated and not having regular contact with her mother was not disputed. The child required counselling through the ROCK program to address the emotional distress she suffered.

16(3)(d) the history of care of the child

[41] Ms. Al Kowatli has always been the significant and primary caregiver for the child. She takes the child to medical appointments and arranged for the child to attend day care and now primary school. She is isolated with no family support in Canada. Her family all reside in Lebanon although they have come to Canada to visit and to establish a personal relationship with the child. Mr. Berrwin admits the child is well cared for by Ms. Al Kowatli. He does not deny Ms. Al Kowatli comes from a highly respected family and that the child is well cared for. There is no suggestion the child has in any way been neglected or mistreated by Ms. Al Kowatli or her family.

[42] She, on the other hand, claims the child’s personal hygiene is not properly maintained when under Mr. Berrwin’s care. In September 2018, Ms. Al Kowatli travelled to Lebanon for medical treatment. Mr. Berrwin refused to allow the child to be taken out of the country and so she lived with him for eight weeks, until Ms. Al Kowatli returned to Canada. The separation was emotionally traumatic for the child. During this time, the child was forbidden to have regular contact with her mother, and she was not taken to school. Her care and personal hygiene were not properly maintained. The child was required to sleep with Mr. Berrwin or to share a single bed with her paternal grandmother. 

[43] The child is now seven years old. This sleeping arrangement continues to date on the alternate weekend parenting time. The child is still forced to sleep in a single bed with her grandmother as Mr. Berrwin stated he sees no need to provide a bed for the child due to the limited number of nights she sleeps at his home. Mr. Berrwin admits he does not engage in attending to her personal care. The child only has “half baths” when in his care as he is apparently unable to wash her hair. The child has told her mother that she is left unsupervised watching YouTube videos for long periods of time. 

16(3)(e) the child’s views and preferences, giving due weigh to the child’s age and maturity, unless they cannot be ascertained

[44] The child’s views and preferences were not offered into evidence. She has only just turned seven years old and would not be mature enough to express a thoughtful opinion on this very important issue. There was no independent assessment conducted to provide the court with any guidance on this issue.

16(3)(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[45] Both parents are of Lebanese heritage and they participate in Islamic religious and cultural traditions. While the child would be fully immersed in these cultural, linguistic, religious and spiritual experiences in Lebanon, she is able to engage in the Lebanese culture in Canada by attending an Islamic Centre, by taking Arabic language classes and by participating in the local Lebanese community. 

[46] The child’s Canadian cultural heritage must not be ignored. She was born in Canada and, but for six months as an infant, she has resided only in Canada. Ms. Al Kowatli provided no plan to protect the child’s Canadian heritage, other than a suggestion she would be permitted to spend part of her summer vacation time in Canada. There was no detailed commitment as to how the child’s Canadian identity would be preserved.

16(3)(g) any plans for the child’s care

[47] Ms. Al Kowatli has provided no plan for the child’s care beyond statements that they will live with her family in Beirut and that the child will attend a private school, offering her a better education than she could hope to obtain in Canada. There is no real parenting plan proposed other than a statement that Mr. Berrwin will have extended access with the child in both Canada and Lebanon during school holidays and that he will have regular access for the rest of the year by social media and other electronic methods. No details of how or when this would occur were provided. No schedule was proposed for how the virtual or physical visitations would take place, nor was there any plan submitted as to how the child would be brought to Canada. She is too young to travel so far as an unescorted passenger. There was no child focussed assessment of the proposed parenting plan.

16(3)(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

[48] Ms. Al Kowatli has demonstrated she is more than capable of caring for and meeting the needs of the child. The child lives with her the vast majority of the time and Mr. Berrwin confirms he has no concerns with the child’s wellbeing. With support from her extended family in Lebanon and with her expected employment prospects, I am confident Ms. Al Kowatli would continue to care for and meet the needs of the child if permitted to relocate. 

[49] Mr. Berrwin appears to need assistance in addressing the child’s dietary needs and her personal hygiene if he were to have her for extended parenting time over the summer months. Ms. Al Kowatli’s evidence in this regard was not directly disputed. Half baths, failing to wash or brush her hair, and lax enforcement of dental routines would not be appropriate for any length of time. Failing to adhere to the child’s dietary routine is not in the child’s best interests. Mr. Berrwin’s ongoing failure to provide a bed for the child to sleep independently is also of great concern. It suggests she is treated as less than a visitor on her weekend stays. It is no answer to say that the limited time she sleeps at the home does not warrant providing a bed for the child.

16(3)(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

[50] The parties have both expressed they do not trust the other. Mr. Berrwin is fearful that if allowed to relocate, Ms. Al Kowatli will ensure he never sees the child again. Ms. Al Kowatli does not trust Mr. Berrwin to provide adequate care or give proper attention to the child when she is with him, and she does not trust him to provide appropriate financial support for herself or the child. 

[51] Neither parent has demonstrated an ability nor willingness to communicate and cooperate on matters affecting the child. Legal and financial threats are frequently issued by the parties. A poorly defined parenting arrangement requiring extensive international travel is unlikely to be successful if the parties fail to cooperate and fail to show respect for each other. The best interests of the child demand the parents to properly and respectfully communicate and cooperate with each other, irrespective of the time or distance specified in a parenting arrangement.

16(3)(j) any family violence and its impact

[52] There is no evidence of physical violence, although Mr. Berrwin has been financially and emotionally controlling in his dealings with Ms. Al Kowatli, who was entirely dependent upon him for support. She was a new immigrant and a new mother. She did not work outside of the home. She was isolated from her family. In these circumstances, Mr. Berrwin’s controlling behaviour is a form of family violence. 

[53] It is not disputed that without the consent of Ms. Al Kowatli, Mr. Berrwin brought his mother from Lebanon to Canada and moved her into the matrimonial home. This resulted in domestic conflict between Ms. Al Kowatli and her mother-in-law. Without the knowledge or consent of Ms. Al Kowatli, Mr. Berrwin filed the registration of birth naming the child after his mother, purportedly in accordance with Middle Eastern traditions. Ms. Al Kowatli was denied the opportunity to have any input or involvement in the legal name given to her child, a name that carried feelings of ill will for Ms. Al Kowatli. Mr. Berrwin’s refusal to allow her to be involved in the naming of the child is clear evidence of his emotional control. 

[54] During the marriage, Mr. Berrwin placed Ms. Al Kowatli in a position of total financial dependency. Shortly after the child was born, Ms. Al Kowatli returned to Lebanon with the consent of Mr. Berrwin. While in Lebanon, she regularly communicated with Mr. Berrwin, sending photos, text messages and participating in Skype video calls. During this period, she concluded the marriage was irretrievably over. She communicated with officials at the Canadian Embassy in Beirut and followed their advice that she return to Canada to deal with her family law matters. Ms. Al Kowatli returned with the child to find her bank account had been closed and her credit card cancelled by Mr. Berrwin. She was forced to move into a women’s shelter with the child until she was placed in government subsidized housing.

[55] He has also been financially controlling after the separation. He only paid child and spousal support when ordered to do so by the court. He has made repeated threats and efforts to terminate or reduce the spousal support entitlement at a time when he knew Ms. Al Kowatli was unemployed, and during a global pandemic that has significantly affected many economic sectors in this country. By his conduct, Mr. Berrwin has confirmed the evidence of Ms. Al Kowatli as to his coercive and controlling behaviour is not overstated or exaggerated. 

[56] There is no evidence from the parties nor any independent evidence to suggest the child’s physical, emotional and psychological safety and security is at risk with either parent, however this ongoing pattern of serious emotional and financial intimidation by Mr. Berrwin is not in the best interests of the child. 

[57] In addition, the s. 16.92(1) relocation factors to be considered in determining the best interests of the child are as follows.

16.92(1)(a) the reasons for the relocation

[58] Ms. Al Kowatli has provided evidence that she has not been able to find suitable employment in Canada and therefore must remain financially dependent on Mr. Berrwin and on the social welfare system. Ms. Al Kowatli is now in a position of extreme financial vulnerability. In Lebanon, she has a law degree and purportedly better prospects of employment that are more in keeping with her abilities. She is confident she will obtain meaningful employment that will provide an income to allow she and the child a higher standard of living than they can ever hope to have in Canada. Further, she wishes to relocate to have the help and support of her family, with whom the child has a close and loving relationship. Ms. Al Kowatli has no such support system in Canada.

16.92(1)(b) the impact of the relocation on the child

[59] The proposed relocation will have a profound impact on the child. But for a six month period when she was an infant, the child has lived exclusively in Canada. She is young and has not yet developed strong connections, but she will be separated from Mr. Berrwin and taken from the only community she has ever known. She will be removed from Canada and taken to a country that is subject to several Government of Canada Travel Advisories warning travellers to “exercise a high degree of caution in Lebanon due to an unpredictable security situation and the risk of terrorist attack”. Ms. Al Kowatli dismissed the risks of travel to Lebanon and suggested that it was no more dangerous than the risks of living in Toronto or Mississauga, which have both experienced gun violence and crime. In her view, the crime rate in Canada is equivalent to that in Lebanon, when examined on a per capita basis. Further, Ms. Al Kowatli stated in questioning that she would not travel to the areas of Lebanon that are subject to the strongest warnings from the Canadian government. 

[60] Mr. Berrwin strongly disputes Ms. Al Kowatli’s depiction of life in Lebanon. He left Lebanon because of the civil, political and economic strife, where issues of war, terrorism and political corruption are commonplace. He is proud of his Lebanese heritage, but he sought out a life of safety, stability and employment opportunities in Canada.

[61] The parties clearly have very different views of daily life in Lebanon. 

[62] Considering the issue from the child’s perspective, there will be significant disadvantages to living in a country of political and social instability. The Greater Toronto Area is certainly not immune from issues of crime and gun violence. I have no independent evidence of what it is like to live in Lebanon. The parties each offer their own views, no doubt coloured by the fact of this hearing. I do not accept either version as being truly representative, in that daily life in Lebanon is not likely as rosy a picture as painted by Ms. Al Kowatli nor as dire as described by Mr. Berrwin. In the circumstances, I can only be guided by the various Travel Advisories issued by the Canadian Government and conclude the child is likely to have greater personal safety and security if she were to remain living in Canada. 

[63] Ms. Al Kowatli intends to provide the child with private school education but has offered no evidence as to how it would offer greater opportunities than the child would receive from a public school education in Ontario. In the circumstances, I must infer there are no substantive differences.

[64] Mr. Berrwin has paid spousal and child support, but only after being ordered to do so by the Court and based on significantly underrepresented income. The child is well cared for and her needs are being met at this time by her mother. Absent the assertions of Ms. Al Kowatli, I have no evidence that her needs would be better met in Lebanon without the financial or emotional support of Mr. Berrwin. 

[65] Ms. Al Kowatli has no confirmed employment nor a plan for meeting the needs of the child, other than the expectation her family will provide housing and financial support until she and the child are settled. There was no evidence offered by the family members to confirm they will provide for Ms. Al Kowatli and the child. 

[66] With the uncertainty of the pandemic and the ongoing Covid-19 travel restrictions, Ms. Al Kowatli is unable to search for employment opportunities, residential housing or private schools until she has a better understanding of when she may be able to relocate with the child. I must however view this issue at this time from the perspective of the child who will be removed from Canada to Lebanon with some measure of financial and residential insecurity. I must find that Ms. Al Kowatli’s hopes for a better life in Lebanon in the future without a firm plan in place for the present will have a negative impact on the child.

16.92(1)(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

[67] Mr. Berrwin spends only four days per month with the child. Mr. Berrwin is also entitled to two non-consecutive weeks in the summer, but it is unclear whether he has ever exercised the summer vacation parenting time. Ms. Al Kowatli has the child at all other times and is responsible for attending to all physical, medical, psychological, social and educational matters related to the child. During the pandemic restrictions, Ms. Al Kowatli also attended to facilitating the child’s online learning. 

[68] Mr. Berrwin is accused of leaving the child alone to watch television or YouTube videos during her visits. He denies this and claims instead to make every effort to ensure that his parenting time with the child is enjoyable and enriching. He reads to her at bedtime and engages in physical activities when possible. 

[69] In this pandemic era, I acknowledge that both parties will have had their best intentions for child focussed activities limited by the stay at home orders. It cannot be disputed that Ms. Al Kowatli spends significantly more time and is substantially more involved with the child’s life.

16.92(1)(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

[70] As noted above, this matter was initiated at a Case Conference held on January 29, 2021 prior to implementation of the formal notice requirement. I am satisfied however that Ms. Al Kowatli has substantively complied with the notice requirements under s. 16.9. The prescribed form of notice was not followed, but the necessary information was provided by Ms. Al Kowatli to Mr. Berrwin by way of affidavit evidence and through the questioning process. There are no other notice requirements in the agreement of the parties nor in the parenting order with respect to relocation. Ms. Al Kowatli has complied with her obligations under s. 16.9.

16.92(1)(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside

[71] The current parenting order provides that “[N]either parent should remove the child from the Province of Ontario for purposes of holiday vacation or other agreed purpose without the written consent of the other Party, such consent not to be unreasonably withheld, or order of the court”. There are further provisions about facilitating travel for vacation purposes. There are no provisions in the parenting order to specify, limit or restrict the geographic area in which the child is to reside.

16.92(1)(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

[72] The proposal put forward by Ms. Al Kowatli is vague. It generally provides that Mr. Berrwin would be given liberal parenting time during the school holiday periods both in Canada and in Lebanon, and that the child would be made available to Mr. Berrwin for parenting time if he was visiting family in Lebanon. There are no specifics as to the amount of time being offered nor has a schedule been proposed. “Liberal parenting time” was not defined.

[73] To enable Mr. Berrwin to exercise parenting time with the child, Ms. Al Kowatli’s proposal provides she will waive all spousal and child support obligations going forward, providing approximately $15,000 per year to offset the added travel expenses. There is no provision for how the transfers of the child would be done and there is no offer by Ms. Al Kowatli to bring the child to Canada at any time in the future. The suggestion is that Mr. Berrwin must travel to Lebanon, a country that he believes to be unsafe, in order to exercise his parenting time with the child. Alternatively, if he wished to bring the child to Canada to exercise his parenting time in the summer, Mr. Berrwin would be required to make two round trip flights to Lebanon to accompany the child’s travel. This is unreasonable, even taking into account the added financial resources that would be afforded to Mr. Berrwin.

[74] In addition, Ms. Al Kowatli proposes to facilitate telephone and Skype access on a weekly basis. During the pandemic, the child attended virtual schooling, so she is familiar with using online resources to maintain personal relationships. This would however be significant change from the in-person parenting time she currently has with Mr. Berrwin. Considering the geographic distance involved this aspect of the parenting proposal is not unreasonable in principle, but Ms. Al Kowatli’s failure to provide any form of schedule for the calls or meetings leaves me with no ability to ascertain if her proposal in this regard is in fact reasonable.

16.92(1)(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

[75] Ms. Al Kowatli has been fully compliant with the existing parenting order but for one occasion in the very early days of the Covid-19 pandemic when she refused to send the child for parenting time with Mr. Berrwin. She did however promise to make up the time. 

[76] There was a suggestion by Mr. Berrwin that he is not informed of all aspects of the child’s life and that Ms. Al Kowatli has marginalized his involvement in the child’s life. The evidence he provided in this regard is an email from Ms. Al Kowatli reporting on the advice of a pediatric appointment she attended with the child and the recommendations of the physician respecting the child’s diet. This communication contradicts rather than supports his assertion of being marginalized. Mr. Berrwin has the authority to directly contact any of the child’s medical practitioners. If he has not done so, he cannot allege Ms. Al Kowatli is failing to keep him informed of the child’s health or wellbeing. 

[77] Ms. Al Kowatli has demonstrated she respects the Canadian legal process and the orders issued by this Court. I have every reason to believe she will continue to do so in the future.

Conclusions

[78] Once again, as the child spends the vast majority of her time with Ms. Al Kowatli as the primary care parent, Mr. Berrwin bears the burden to prove the relocation would not be in the best interests of the child (s. 16.93(2) Divorce Act). He has met his burden.

[79] Considering all of the factors required to determine the best interests of the child, and having given no consideration to whether Ms. Al Kowatli would relocate without the child or change her plans for relocation if the child’s relocation was prohibited (as required by s. 16.92(2) of the Divorce Act), I conclude it is in the child’s best interests to deny the application. 

[80] Ms. Al Kowatli has the primary care and sole decision-making authority for the child. Her wishes are entitled to significant respect and serious consideration. I have given much weight to the financial vulnerability and social isolation she suffers in Canada. It is not in the child’s best interest to have her mother subjected to the ongoing coercive and controlling behaviour of her father. It is not in the child’s best interests to be forced to co-sleep with her elderly grandmother. It is not in the child’s best interests for her care and personal hygiene routine to be ignored when spending time with her father. It is especially not in the child’s best interests to be denied access to her mother by telephone or by digital means when she is with her father. There are factors to support the relocation application of Ms. Al Kowatli as being in the best interests of the child.

[81] However, the poorly defined parenting plan and the impact a relocation would have on the child significantly weigh against granting Ms. Al Kowatli leave to relocate with the child to Lebanon. The safety and security risks cannot be ignored. The lack of any specifics with respect to how Mr. Berrwin will be permitted to meaningfully engage in parenting time with the child is not reasonable and it is not in the child’s best interests. While I am sympathetic to the limitations placed on Ms. Al Kowatli due to the Covid-19 pandemic and the current travel restrictions, it is not in the child’s best interests to relocate without any assurances of stability and without a clearly defined plan to ensure she is able to maintain a relationship and parenting time with Mr. Berrwin and with his extended family. 

[82] As I have found it is not in the best interests of the child to allow Ms. Al Kowatli to relocate, there is no need to consider how the parenting plan should be structured. The current parenting plan shall continue.

In Apa v. Vagadia, 2021 ONSC 5802 (CanLII), Lemay J. set out the relocation procedure under the new provisions of the Divorce Act:

[24] These provisions establish a process for dealing with how the Court will consider mobility applications made by parents with decision-making authority. Notice must normally be given to the other parent of any move, regardless of whether it is a relocation, unless the Court orders otherwise. The Court has a discretion to order otherwise in cases where the Court views it appropriate, but the section specifically mentions domestic violence as a factor the Court should consider in exercising that discretion.

[25] Once notice is given, the opposing party has the right to object to the move. If there is no objection to the move, then the party with decision making authority is entitled to move. If there is an objection (as is the case here), the matter must be considered by the Court. These provisions formalize the requirements for considering a relocation set out in Gordon v. Goertz 1996 CanLII 191 [1996] 2 S.C.R. 27. They also place the best interests of the child as a paramount factor for the Court to consider. The manner in which these provisions are to be considered has been discussed in Authier v. Noel 2021 ONSC 5326 and Siddiqui v. Khan 2021 ONSC 4673.

[26] In this case, the legislation and the underlying facts require me to consider a series of issues, as follows:

a) Has notice been given by the parent seeking to move the children?

b) Does the move amount to a relocation?

c) If so, is the move in the best interests of the children?

In O'Brien v. Chuluunbaatar, 2021 ONCA 555 (CanLII), the mother was 43 years old and was from Mongolia. In Mongolia, she worked as an economic analyst, a financial sector specialist, and a consultant for various international companies. She immigrated to Canada in January 2010. She was unable to find stable employment in Canada, and, at the time of the trial, was unemployed. The father was 43 years old and born and raised in Peterborough, Ontario. The parties separated when the child was about nine months old. The mother was the child's primary caregiver, and, based on a consent order, had sole custody of the child. In July 2018, the mother brought a motion to change the terms of the Consent Order so that she and the child could relocate to Ulaanbaatar, Mongolia. The mother asked that the father's access be adjusted and offered to provide him with extensive access at Christmas and during the school summer vacation, as well as at other times, both in Toronto and Mongolia. The father opposed the Motion and sought an order for joint custody. The trial judge found that the relocation was in the child's best interests, and she permitted the mother to relocate, with the child, to Mongolia. The father appealed to the Superior Court of Justice. The appeal judge reversed the trial decision, finding that the trial judge erred in focusing on the mother's reasons for relocation, rather than on whether the relocation was in the child's best interests, and that the trial judge had not given proper effect to the "maximum contact" principle. The Court of Appeal allowed the appeal and restored the trial judge's Order, finding that the trial judge made no error in her application of the test for relocation:

[23] The trial judge gave lengthy, thoughtful reasons for decision. On the relocation issue, she began by setting out the legal principles in Gordon v. Goertz1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, as well as additional factors courts have since considered when applying those principles. She explained that although the Motion was brought under the CLRA, not the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), the legal principles in Gordon applied nonetheless.

[24] The trial judge then canvassed the evidence relevant to the relocation request and applied the Gordon principles and additional factors to her factual findings. Throughout her reasons, the trial judge repeatedly stressed that the question for determination was whether relocation was in the child’s best interests.

[25] The trial judge’s reasons for concluding that relocation was in the child’s best interests include the following:

- The mother’s family in Mongolia has a long and strong relationship with the mother and the child; the family members have made them a priority in their lives, which the father’s family has not. The mother’s family will continue to support them, particularly now when the mother especially needs their help;

- The mother is struggling in Toronto as a single mother living alone, and feels isolated and insecure. She would benefit from the support of her family and friends in Mongolia;

- The mother and child will have a better life in Mongolia – the mother’s employment prospects are better, she will be more financially secure, and she will have help from her family financially and with childcare for as long as she needs it;

- The mother will regain her confidence and her emotional, psychological, social, and economic well-being, which will benefit the child and is, therefore, in the child’s best interests;

- The child will benefit from a close connection with the mother’s extended family, being able to participate in numerous extracurricular activities, having better living arrangements in a more spacious apartment, and developing a connection to her Mongolian heritage and tradition.

[26] The trial judge found that even with the relocation, the mother would facilitate the relationship between the child and the father, which the mother recognized as important. On the trial judge’s findings, the mother has always followed the court ordered access; been generous with additional access; encouraged telephone access between the father and the child even when they were in Mongolia; and, allowed the father to attend her residence for access in a period when the father had mental health difficulties.

[27] The trial judge considered the relationship between the father and the child, and the disruption that would result from the relocation. She recognized that the father has a good relationship with the child and noted the mother’s evidence that the child has developed a strong bond with her father and enjoys spending time with him. She concluded that the advantages for the mother and the child of moving outweighed the disadvantages of a possible reduction of the father’s contact with the child. She ordered extensive access for the father including ten weeks in the summer, three to four weeks in the winter, and, in Mongolia any time during a school break, for up to two weeks, on one month’s notice.

[...]

[33] At para. 67 of his decision, the appeal judge gave two reasons for concluding that the trial judge erred in her application of the test for relocation. First, he said that instead of determining whether relocation was in the child’s best interests, the trial judge permitted it because the mother would have an improved life in Mongolia. Second, he said that the trial judge erred in considering the mother’s reasons for moving because those reasons should have been considered only in an exceptional case where they were relevant to her ability to meet the child’s needs. In my view, neither reason is correct. The trial judge made no error in her application of the test for relocation.

[34] In terms of the first reason, it is simply incorrect to say that the trial judge focussed solely on the mother’s reasons for relocation. The trial judge’s focus throughout was squarely on whether the relocation was in the child’s best interests. She repeatedly stressed this: see paras. 15-16, 28-29, 32-34, 36, 39, 121, 123, 125, 128-30, 132, 136-37, 139, and 141-46. Further, the trial judge’s weighing of the various considerations demonstrates her adherence to that focus. Three examples are sufficient to demonstrate this.

[35] At para. 39 of her reasons, the trial judge wrote:

Requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child’s best interests …. [Emphasis added.]

[36] At para. 137, she wrote:

The court considered all of the following: that the mother feels isolated and insecure in Canada; that she would benefit from the support of her family and friends in the other location; that her employment prospects are better there; that the child will benefit if the mother is able to become independent and live in a stable environment; and that the child will suffer if the mother is restricted and remains insecure. [Emphasis added.]

It follows that an improvement in the mother’s social, emotional, and financial circumstances are in the child’s best interests.

[37] And, at paras. 141-42 of her reasons, the trial judge wrote:

There is also a psychological, social and emotional component to [the mother’s] desire to move, in order for her to regain the general stability and control in her life that has been absent since the relationship with the father ended in September 2014. There is a connection between the quality of a parent’s emotional, psychological and social and economic well-being and the quality of the child’s primary care-giving environment.

An improvement in the mother’s physical, emotional, and financial circumstances can only benefit the child and therefore be in the child’s best interests. [Emphasis added.]

[38] The appeal judge’s second reason for concluding that the trial judge erred in her application of the test for relocation – namely, that the trial judge erred because she considered the mother’s reasons for moving – disappears because of recent amendments to the CLRA governing relocation.

[39] The CLRA amendments largely mirror amendments to the Divorce ActSection 16.92(1)(a) of the Divorce Act explicitly directs the court, when deciding whether to authorize a relocation, to take into consideration the reasons for the relocation. It reads as follows:

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;

[40] The Divorce Act amendments came into force and effect on March 1, 2021. The transition provision in s. 35.3 of the Divorce Act makes it clear that the new relocation provision in s. 16.92(1)(a) applies, as of that date, to any ongoing proceeding:

35.3 A proceeding commenced under this Act before the day on which this section comes into force and not finally disposed of before that day shall be dealt with and disposed of in accordance with this Act as it reads as of that day.

[41] Section 39.4(3) of the CLRA also now directs the court to take into account the reasons for the relocation:

39.4(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,

(a) the reasons for the relocation;

[42] Unlike the Divorce Act, the CLRA does not contain an explicit transition provision governing the amendments. However, in my view, the CLRA amendments must also apply to any ongoing proceedings when they came into force on March 1, 2021. Common sense dictates that the parallel amendments in the Divorce Act, governing parenting orders for children on married parties, and the CLRA, governing parenting orders for children of non-married parties, operate in the same fashion.

[43] Accordingly, on this appeal, the reasons for relocation are a proper consideration and this supposed error on the part of the trial judge falls away.

In Siddiqi v. Khan, 2021 ONSC 5326 (CanLII), the Court set out the legal framework under the Divorce Act applicable to a request for relocation as follows:

[21] In the recent decision of Authier v. Noel, 2021 ONSC 4673, Fraser J. considered the legal framework under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) applicable to a request for relocation.

[22] I adopt Fraser J.’s summary and analysis in Authier at paras. 32 to 47:

[32] […] the mobility issue is governed by the new provisions of the Divorce Act, R.S.C. 1985 c.3 (2nd Supp.) (the “Act”) which came into force on March 1, 2021.

[33] Subsection 16(1) of the Act requires any parenting order to be determined by taking into consideration only the best interests of the child.

[34] I am required, in determining the child’s best interests, to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”, while considering “all factors related to the circumstances of the child”: ss. 16(2)-16(3).

[35] A non-exhaustive list of factors to be considered in determining the child’s best interests are set out in subsection 16(3) of the Act [...].

[36] The principle that a child should have as much contact as possible with each parent remains a part of the court’s best interests considerations. In essence, Lexi should enjoy as much contact with each of her parents as is consistent with her best interests. [...]

[37] Under the Act’s interpretation provisions (subsection 2(1)), relocation is defined 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

[38] Prior to the recent amendments to the Act, the leading relocation case setting out the factors to be considered when determining whether it is in the best interests of a child to move was set out in Gordon v. Goertz (1996) S.C.R. 27. The recent amendments to the Act have formalized the relocation process.

[39] The Act’s new relocation provisions require, before any move with a child, specific advance notice by a person with decision-making responsibility regarding that child. If there is no agreement there is to be a court hearing.

[40] In this instance the Agreement provided that notice of an intended move be given (and it was given prior to the amendments to the Act coming into force). No dispute has been raised concerning the substantive notice given nor was it argued that it was not in accordance with the terms of the Agreement.

[41] Subsection [16.92(1)] of the Act sets out additional factors that are to be considered in determining the best interests of a child where relocation is requested: [...]

[42] Pursuant to subsection 16.1(2) of the Act, the court may, on application, make an interim parenting order pending the determination of an application.

[43] […]

[44] Interim motions requesting a move of the residence of children pending a trial on the issues of custody and mobility pose their own unique challenges and problems. Justice McSorley in Kennedy v. Hull2005 ONCJ 275 (Ont. C.J.) (CanLII) at paragraph 9 stated:

“The problem is that it is difficult, if not impossible, in many cases to complete the extensive child-focussed inquiry required … [based] on the conflicting and incomplete affidavit evidence that is often available on interim motions. The courts’ general reluctance to effect fundamental changes in a child’s lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases that recognize the short-term nature of interim orders and the summary nature of interim motions.”

[45] Marshman J. in Plumley v. Plumley, (1999), 1999 CanLII 13990 (ON SC), 90 A.C.W.S. (3d) 740, [1999] O.J. No. 3234, at paragraph 7, set out the following considerations to apply when considering relocation requests on interim motions pending trial:

“It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.”

[46] In Datars v. Graham, 2007 CarswellOnt 5257 (SCJ) the court noted a general reluctance to “effect fundamental changes in a child’s lifestyle on interim motions.” One reason given was the concern for even more disruption for the child if the temporary change was reversed at trial.

[47] In Consentino v. Cosentino,2016 ONSC 5621, Pazaratz J. observed that motion judges considering mobility issues on an interim or temporary basis need to be mindful of both short term and long term dynamics, to ensure that the maximum contact principle is not undermined by the unilateral actions of either party.

In Bourke v. Davis, 2021 ONCA 97 (CanLII), the parties were married in 2012 and had two sons. The parties separated in 2017, with the children remaining with the respondent in the matrimonial home, and subsequently divorced. The respondent married a United States resident in 2018 and they had a child together. With the onset of the COVID-19 pandemic, the respondent's husband arranged to work in Ontario and obtained a Canadian work visa that expired in December 2020 and could not be extended. The respondent sought an order allowing her to move with the children to Washington State. The trial judge accepted the respondent's position that she intended to move to Washington with or without the children, and so rejected the investigator's recommendation on the mobility question, premised as it was on the respondent remaining in Ontario. Allowing the children to move with the respondent, with generous and liberal access to the appellant, was found to be in the children's best interests. Feldman J.A. held that the trial judge did not err by relying on the respondent's position that she would move to Washington with or without the children. The respondent was clear with the court that she had made a very difficult decision to go to Washington with her husband and baby from an employment and financial point of view. She put forward three parenting plans, none of which contemplated her remaining in Ontario. The trial judge was not only entitled but obliged to accept the fact that the status quo was not an option. Because the appellant did not put forward a parenting plan, the judge was limited in the analysis that he could conduct for the children's best interests:

[46] Parliament's explanation of s. 16.92(2) reflects the "classic double bind" that has been recognized in the jurisprudence for many years. When the parent who wants to move with the children is asked whether they will stay in their current location should the mobility order not be made, the parent is immediately placed in a "lose-lose" situation. If they answer that they would stay with the children, it allows the court to fall back on the status quo and force the parent to remain when that result may not be in the best interests of the child. By contrast, if the parent says that they would go regardless, it allows the court to draw an adverse inference about that parent's dedication to the children. The problematic double bind has led the courts to repeatedly discourage judges from relying on a parent's representations about whether they will or will not move without the children: see, for example, Spencer v. Spencer, [2005] A.J. No. 934, 2005 ABCA 262, 371 A.R. 78, at para. 18Hopkins v. Hopkins, [2011] A.J. No. 1413, 2011 ABCA 372, at para. 6; and Hejzlar, at paras. 24-27.

[47] The appellant argues that despite citing the appropriate cases on the double bind, the trial judge nonetheless placed "undue weight" on the respondent's intention to move in his analysis of whether to grant the children's relocation. However, I do not believe that is what occurred in this case. [page444]

[48] The respondent was clear with the court that she had made the very difficult decision to go to Washington with her husband and baby, whether the children could go with her or not. She put forward three alternative parenting plans: (1) the children move with her to Washington and the appellant moves to British Columbia for closer and easier access; (2) the children move with her to Washington and the appellant stays in Ontario; and (3) she moves to Washington and the children remain with the appellant in Ontario. There was no plan presented where the respondent would remain in Ontario. In other words, the respondent made the trial judge aware that the status quo was not an option. For her part, the appellant's plan only contemplated that the respondent would remain in Ontario with the children and that they would share custody on a 2/2/3 arrangement.

[49] The respondent explained to the trial judge why she made the very difficult decision about the move. From an employment and financial point of view, it was not feasible for the family to remain in Ontario, and live on her salary alone, and if her husband gave up his job with Microsoft, he would lose not only his salary but the generous benefits in which she and the children as well as the baby were enrolled.

[50] In these circumstances, the trial judge was not only entitled but was obliged to accept the fact that the respondent would be moving to Washington with or without the children and that the status quo was not an option for the court to consider. Because the appellant did not put forward her own parenting plan for the children if they remained in Ontario without the respondent, the trial judge was limited in the analysis he could conduct for the children's best interests if the order was not made.

[51] In his consideration of the mobility issue, the trial judge was always focused on the best interests of the children. In particular, he considered the research the respondent had conducted and the plans she had made for the children in Washington, including the family situation there, the economic benefits, and the maintenance of maximum contact with the appellant through visits as well as electronic means. He acknowledged the "double bind" issue that courts have wrestled with, where the moving parent's motives for, and sincerity about moving has put that parent in a difficult position, but pointed out that in this case, the respondent was clear she would move either way. He rejected the appellant's position that the respondent was "holding the court up to ransom" by saying she would move regardless of the outcome on the mobility application. The trial judge noted that this submission was simply another way of saying that the respondent [page445] was acting in bad faith, when there was no evidence to support that position.

[52] I see no error in the trial judge's treatment of the respondent's intention to move to Washington. To the contrary, he assessed the reality of the available options for the children and used their best interests as the yardstick by which to measure the most suitable option for them.

In A.E. v. A.B., 2021 ONSC 7302 (CanLII), the mother wished to relocate with the children to Ohio, to be with her new partner and his daughters. Jarvis J. considered the caselaw where a parent sought to move into another jurisdiction and noted the importance of the moving party's behavior in fostering and supporting the children's relationship with the other parent: 

[138] It is, perhaps, counter-intuitive that fostering a healthy relationship with the other parent may enhance the likelihood of a relocation Order being made. In O’Brien v. Chuluunbaatar[75] the Court of Appeal upheld a trial judge’s Order permitting a mother to relocate to Mongolia with the parties’ seven-year old son, born and raised in Ontario. Pivotal to the best interests’ analysis were the benefits to the child of the mother’s enhanced emotional, psychological, social and economic well-being if relocation was permitted, and the trial evidence that

“…even with the relocation, the mother would facilitate the relationship between the child and the father, which the mother recognized as important. On the trial judge’s findings, the mother has always followed the court ordered access; been generous with additional access; encouraged telephone access between the father and the child even when they were in Mongolia; and, allowed the father to attend her residence for access in a period when the father had mental health difficulties.”[76]

[139] In Bourke v. Davis[77]also a relocation casethe trial judge allowed the mother of the parties’ two young children born and raised in Kitchener, Ontario, to move with her to Redmond, Washington where her new husband had found employment. A s.112 OCL report had recommended against the move because it would adversely impact the father’s involvement in the children’s health, education and religion. In upholding the move, the Court of Appeal observed that the trial judge had found that

“… there was a reasonable measure of communication and cooperation between the parties regarding decisions about the children, including their dental care, additional access time for the [father], education issues, and the arrangement of events such as birthday parties.”[78]

[140] What distinguishes O’Brien and Bourke from this case are the Courts’ findings about the moving party’s behaviour in fostering and supporting the children’s relationship with the other parent. In Kazberov v. Kotlyachkova[79] the Court refused a mother’s request to relocate with the parties’ eight year old son from Waterloo to Michigan because the Court found that the mother had minimized the father’s involvement in their child’s life over several years, de-prioritized the child’s relationship with the father’s family and had demonstrated an inability to work collaboratively. The Court had no confidence that the mother’s attitude would change if a move was allowed. The mother in this case distinguished Kazberov, pointing to the observations of an OCL clinician who recounted that the child was ambiguous about a move and preferred to remain in the Waterloo area. In addition, unlike the child in Kazberov, the children in this case are older (JB and EB at least) and have expressed a clear, consistent and strong desire to move. Relying on Mattina v. Mattina[80]another appellate decision, the mother submitted that the children’s views “particularly those of the older children, deserve significant weight”.[81] The superordinate consideration where relocation is under consideration must be approached from a child-centred perspective.[82]

Jarvis J. granted the move on the grounds that the children were closer emotionally and psychologically to their mother than their father:

[150] The OCL report and the VOCR are not determinative of the relocation issue but merely pieces of evidence, often very helpful, for the Court’s consideration. The evidence of both clinicians­ - Ms, Garibotti’s more comprehensive but cautious and Ms. Stefanutti’s more limited but emphatic--is clear that the children are closer emotionally and psychologically to their mother than their father. The trial evidence also supports this conclusion. While the children’s views and preferences, especially those of JB and EB, are not to be confused with their best interests, it is impossible to unwind the last five and a half years and, given the change in family constellations, there is considerable risk to the children’s best interests if relocation is refused. That concern outweighs the risk of further compromise to their relationship with their father. Despite the Court’s concerns about the mother’s attitude toward the father- Ms. Garibotti noted that the mother could be expected to “comply with court orders and access schedules, but nothing more…”[92]-she has complied with the parenting time Order of the Court, increased the children’s time with their father in excess of that Order and put forward a comprehensive, thoughtful plan.

[151] The mother may relocate with the children to Ohio. She will be expected to demonstrate a flexibility in the children’s parenting arrangements and time with their father as she has represented to the Court (see paragraphs 47 and 48 above): the father will be expected to demonstrate a much greater degree of timely responsiveness to matters involving the children than he has shown to date. While he asked that the court require the mother to obtain an Order in Ohio mirroring any parenting Order made by this court, no evidence was led as to what that would involve in terms of cost, efficacy or how, if at all, his support obligations (including payment of support arrears) might incentivize compliance.

Authorities:
Children's Law Reform Act, RSO 1990, c C.12
Divorce Act, RSC 1985, c 3 (2nd Supp)
Rudichuk v. Higgins, 2021 ONCJ 471 (CanLII)
Al Kowatli v. Berrwin, 2021 ONSC 4999 (CanLII)
Apa v. Vagadia, 2021 ONSC 5802 (CanLII)
O'Brien v. Chuluunbaatar, 2021 ONCA 555 (CanLII)
Siddiqi v. Khan, 2021 ONSC 5326 (CanLII)
Bourke v. Davis, 2021 ONCA 97 (CanLII)
A.E. v. A.B., 2021 ONSC 7302 (CanLII)