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Divorce Act Relocation

November 3, 2021

Ontario

,

Canada

Issue

In what circumstances will a relocation of a child 3.5 hours away from the non-custodial parent be found to be in the child's best interest?

Conclusion

No cases under the new Divorce Act or Children's Law Reform Act provisions were identified that considered whether relocation to a place 3.5-hours away from the matrimonial home was in the best interests of the child. However, guidance may be gleaned from cases that lay out the procedure and factors to be considered under the new provisions.

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 Act. 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. 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 list of best interests factors in Children's Law Reform Act is not a checklist to be tabulated with the highest score winning. Rather it calls for the court to take a holistic look at the child, her needs and the people around her. 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. However, the Divorce Act’s previous reference, in the heading to the relevant section, to “maximum” contact has been removed. However, the operative terms in the section remain the same. Whether “as much contact as possible” or “maximum”, the notion of ensuring that a child enjoys as much contact with each parent as is consistent with their best interests remains an important consideration for the determination of their parenting time. (Phillips v. Phillips)

In Phillips v. Phillips, the mother moved unilaterally, apparently in haste to do so before the new provisions of the Divorce Act took effect. The mother moved to a location approximately one hour from the matrimonial home in good driving conditions. Kurz J. concluded that it would be in the child's best interest to have equal contact with both parents (which the mother's relocation would have made impossible), and ordered the mother to move back within a reasonable distance from the father's residence. Both parents had extended families, and the child could benefit from access to her relatives on her father's side as well as those on the mother's.

In Apa v. Vagadia, the parties were parents of four children. There was an existing court order which gave the mother sole custody of the children and provided the father with access on alternate weekends and on Wednesday nights. The mother advised that wished to relocate from Mississauga to Cambridge, Ontario with the children. The father lived in Woodbridge, Ontario, which was 82 km away from Cambridge. The move would likely make the father's Wednesday night access impossible. Lemay J. found that an unclear text message from the mother to the father did not constitute proper notice. However, Lemay J. went on to consider whether the move was in the best interests of the children. Lemay J. noted that the burden of proving that the relocation was not in the best interests of the children rested with the father, as the children spend the vast majority of their time with the mother. Lemay J, however, found that the father had met his burden at this point, due to the paucity of evidence before the court on the motion.

Children's Law Reform Act

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

One major development is that the law that deals with the major claims for relocation was changed, quite drastically and recently. There is little to no jurisprudence under the new Children's Law Reform Act to date. (Rudichuk v. Higgins)

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 Rudichuk v. Higgins, 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. 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.

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.

In Rudichuk v. Higgins, 2021 ONCJ 471 (CanLII), the Court noted:

[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 O'Brien v. Chuluunbaatar, 2021 ONCA 555 (CanLII), Gillese J.A. considered the new provisions of the Children's Law Reform Act governing relocation and allocation of parenting time. Gillese J.A. stated:

[39] The CLRA amendments largely mirror amendments to the Divorce Act. Section 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. [...]

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

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