|
Family - Child Relocation. Diallo v. Bah [temporary relocation]
In Diallo v. Bah (Div Ct, 2025) the Divisional Court dismissed an appeal, here from an interim order "allowing the two children of the marriage to relocate with their mother from their habitual residence in Toronto to Winnipeg pending the trial of the mother’s application to relocate with the children".
Here the court considers the test "to vary an order to relocate children on a temporary basis":[20] The motion judge identified that the mother had the onus of establishing that there had been a material change of circumstances that justified her request for a temporary relocation. She then set out the following threshold test to be applied when a party is seeking to vary an order to relocate children on a temporary basis. That test requires establishing a material change in circumstances, which in turn requires satisfying the court that there has been:(1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 13. ....
Did the motion judge err in the test that she applied or in the process that she followed?
The motion judge did not err in failing to apply the third part of the Gordon v. Goertz test
[38] In Barendregt the father argued that the trial judge had erred in his application of Gordon to the relocation application before him. In dealing with this argument the Supreme Court made the following points about Gordon and the role that it plays in the current statutory regime:. “[T]he Gordon framework is flexible by design; it is not an unyielding set of rules”: at para. 94.
. “At the time Gordon was rendered, the Divorce Act and provincial family legislations did not contain any provisions pertaining to relocation. In 2019, Parliament amended the Divorce Act to provide a statutory regime that governs relocation applications…. Subject to some notable exceptions, the Divorce Act and these provincial statutes largely codified this Court’s framework in Gordon. As I will explain, where they depart from Gordon, the changes reflect the collective judicial experience of applying the framework for over 25 years”: at paras. 107-108.
. The approach to mobility issues is different when there has been a pre-existing judicial determination with respect to a parenting arrangement. In that case, there is a need to vary the initial order, which requires satisfying the usual test for variation, namely, demonstrating a material change in circumstance. However, “[e]ven where there is an existing parenting order, relocation will typically constitute a material change in circumstances and therefore satisfy the first stage of the Gordon framework”: at para. 113. Therefore, “the first stage of the Gordon inquiry will likely not raise a contentious issue. That said, when the relocation issue arises by way of a variation application, a court must consider the findings of fact of the judge who made the previous order, together with the evidence of new circumstances”: at para. 114.[In this case, Horkins J.’s order was made at a case conference and there were no findings of fact other than those contained in the order itself.] ....
[15] The third branch of the threshold requirement of material change requires that the relocation of the custodial parent not have been within the reasonable contemplation of the judge who issued the previous order. If a future move by the custodial parent was considered and not disallowed by the order sought to be varied, the access parent may be barred from bringing an application for variation on that ground alone. The same reasoning applies to a court-sanctioned separation agreement which contemplates a future move. In such cases, the application for variation amounts to an appeal of the original order.
[16] Conversely, an order which specifies precise terms of access may lead to an inference that a move which would “effectively destroy that right of access” constitutes a material change in circumstances justifying a variation application. [Citations omitted.] . Gillespie v. Gillespie [best interests of child - Divorce Act s.16]
In Gillespie v. Gillespie (Div Ct, 2025) the Divisional Court considers the situation where a party with parenting rights wishes to relocate their residence:Return of A Child Is Not a Remedy for a Failure to Comply
[38] Appellant’s counsel posits that the best interests of the child factors set out at s. 16.92(1) of the Divorce Act are not applicable to a court’s analysis if the relocating parent has failed to obtain authorization for the move. He then advances his position with a view that a moving parent’s failure to obtain authorization can only be remedied by the immediate return of the child irrespective of any consideration of the child’s best interests.
[39] The 2021 amendments to the Divorce Act introduced provisions that require a parent who has parenting time or decision-making responsibility in respect of a child, and who intends to undertake a relocation of that child to notify, at least 60 days in advance, any other person who has parenting time, decision making or contact. The purposes of this provision are to discourage self-help, to create an orderly process, to encourage negotiation and to allow a parent to relocate without court approval in cases in which there is no objection.
[40] The Supreme Court of Canada in Barendregt v Grebiunas, 2022 SCC 22, 469 D.L.R. (4th) confirmed that the amendments to the Divorce Act import the foundational principles for relocations cases from the tests set out in Gordon v Goertz. A relocation at first instance will differ in approach from a variation application, but the crucial question remains: “is the relocation in the best interests of the child, having regard to the child's physical, emotional and psychological safety, security and well-being?”
[41] The inquiry is highly fact-specific and discretionary: see Barendregt, at paras. 115, 152. In no manner can the Divorce Act be read to require the return of a child as a remedy for the failure to give 60 days’ notice of a move, irrespective of a child’s best interests. Pursuant to s. 16.96(3), a court may modify the requirements for notice, or order that they do not apply, if the court is of the opinion that it is appropriate to do so, such as when there is a risk of family violence. As set out in S.T. v. A.T., 2023 BCSC 875, at para 129, citing K.P. v S.K., 2021 BCSC 1426, at para. 126: “non-compliance by a relocating parent within the Divorce Act relocation provisions may not in itself be necessarily dispositive against the request for relocation, if the relocation is otherwise in the best interests of the child.”
[42] At the same time, a unilateral move without notice is an important factor for the court to consider at Trial, and when setting the temporary parenting plan prior to Trial, because a parent who moves without notice may be a parent who holds a disregard of the law and/or a child’s need for predictability and stability.
[43] Here, the mother served a Notice of Relocation on December 21, 2023 after retaining counsel. The father formally opposed the relocation and the issue of K.’s primary residence will be determined at trial. In the interim, the Motions Judge did not err in law when she found that it was not in K.’s best interests to be removed from his primary caregiver pending a final determination. Neither was it an error in law for her to give effect to K.’s best interests by ordering a stepped-up parenting schedule for which the mother bore responsibility for transportation.
[44] Section 16 of the Divorce Act requires the Court to consider at all times, all factors related to the circumstances of the child, which may include the child's views and preferences, the history of caregiving, any incidents of family violence, or a child's cultural, linguistic, religious, and spiritual upbringing and heritage. A court must also consider each parent's willingness to support the development and maintenance of the child's relationship with the other parent and shall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child.
[45] The Motions Judge engaged with these complex and discretionary factors as set out in s. 16 of the Divorce Act and gave well supported reasons for her child-focussed decision. . Shipton v. Shipton
In Shipton v. Shipton (Ont CA, 2024) ththe test for 'relocation'e Ontario Court of Appeal allowed an appeal from a family law application, here "from an order denying a mother permission to relocate her three-year-old daughter from Toronto to Ennis, Ireland".
Here the court considers the test for 'relocation', which is heavily influenced by the 'best interests of the child' doctrine:v. THE LEGAL FRAMEWORK
[21] The appropriate test to apply in relocation cases is not controversial. It is set out in the Act and was revised in 2021. It requires the court to determine what is in the child’s best interests and sets out an extensive open list of factors that the court is required to consider at ss. 16(1)-(6) and s. 16.92:Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
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.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
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.
Factor not to be considered
(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate. ....
(1) ISSUE 1: Errors in Best Interests of the Child Analysis
[25] The fundamental issue before the trial judge was whether relocation was in the best interests of the child. He concluded that it was not. However, his reasons reveal material errors and serious misapprehensions of the evidence. On its own, any single error may not have warranted this court’s intervention. In deciding whether to change an existing parenting order, however, the court must engage in a “full and sensitive inquiry into the best interests of the child”: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 52. Taken together, the trial judge’s errors in this case infect the “best interests” analysis to such an extent that this court must intervene.
....
(a) Material Error Regarding Coercive Control: Relevant to s.16(3)(j) of the Act
[27] The term “coercive control” does not appear in the Act. However, when determining the impact of any family violence within the “best interests” analysis, a judge is bound to consider “whether there is a pattern of coercive and controlling behaviour in relation to a family member”: s. 16(4)(b). Where allegations of family violence are raised it is, of course, incumbent on the trial judge to carefully evaluate them and to take a dispassionate approach to the evidence tendered to support and rebut the allegations. Moreover, a trial judge must approach these allegations with an awareness that “[d]omestic violence allegations are notoriously difficult to prove”: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 144. The judge must also be attentive to the harm a child may experience through indirect exposure to domestic conflict: Barendregt, at para. 143.
....
(b) Improper Attribution of a Motive to Erase the Child’s Indian Heritage: Relevant to s. 16(3)(f) of the Act
[42] Under s. 16(3) of the Act, a child’s cultural, linguistic, religious and spiritual upbringing and heritage must be considered to determine what is in the child’s best interests. Accordingly, the child’s biracial identity and her Indian and Irish heritage were highlighted at trial. ... . Tovmasyan v. Petrosian
In Tovmasyan v. Petrosian (Ont CA, 2023) the Court of Appeal considered an appeal of a child 'relocation' order made under the CLRA:[4] The most contentious issue at trial was whether the respondent would be entitled to relocate with the children. This decision involved the application of s. 39.4 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”). The trial judge was guided by the factors set out in s. 39.4(3). In careful reasons, the trial judge explained why it was appropriate to permit the respondent to re-locate, particularly why it was in the best interests of the two children to move to a location where their extended family members already reside.
[5] The appellant submits that the trial judge erred in placing the onus on him to establish why the proposed re-location should not be permitted. We disagree. Section 39.4(6) of the CLRA places the burden on the part opposing the re-location if the children “spend the vast majority of time in the care of the party who intends to relocate” with the children. The trial judge found that the children spent the vast majority of the time in the care of their mother, the respondent. The appellant submits that the trial judge overlooked the fact that he was prevented from spending more time with the children due to criminal charges he was facing for assaulting and threatening the respondent and the children. We disagree. The trial judge considered this issue within a much broader frame. She found that the appellant exercised only minimal parenting time with the children and showed only the faintest of interest in increasing his time with them in any substantial way.
|
