The Court in this case addressed the issue of relocation on a motion.
The Respondent mother in this case brought a motion for an interim order that would permit her to move from Beachville to Sarnia with the parties’ six-year-old daughter. The Respondent asked that she be granted primary residence of the child and that the Applicant have parenting time on alternate weekends with 2-weekday visits for a few hours after school. The Applicant opposed this motion and argued that the issue of relocation should be adjourned to trial and proposed that there should be a shared-parenting arrangement on a four-day rotating schedule.
The parties in this case were married on October 5, 2015 and separated at some point in either 2019 or 2020 although they disagree on the exact date. The Respondent put forth evidence that she was the child’s primary caregiver and that the Applicant was uninvolved due to his work commitments. The Applicant disputed these characterizations and argued that despite his work obligations, he remained meaningfully involved in caring for their daughter.
The Court began by confirming that Section 16(1) of the Divorce Act requires the court to consider the best interests of the children when making any parenting order. Section 16.92(1) of the Divorce Act considers the factors to consider when dealing with a relocation claim. The factors which were particularly relevant in this case were the reasons for the relocation, the impact of the relocation on the child, the amount of time the child spent with each person who had parenting time with the child and their involvement in the child’s life, whether the relocating parent complied with the notice requirements under the Act and whether each person who has parenting time or decision-making responsibility for the child has complied with their obligations under family law legislation or a court order and their likelihood of future compliance. The Court made it clear that both parties bear the burden of proof to show whether or not the relocation would be in the child’s best interests. The Court also clarified that pursuant to section 16(6) of the Divorce Act, a court must give effect to the principle that a child is to have maximum contact with each parent as is consistent with their best interests. This principle was particularly important in this case as if the court permitted the relocation, the Applicant would have less parenting time with their child and the court was concerned that this would create a new status quo whereby the Applicant would only have alternate weekend parenting time and two short mid-week visits.
The Court was not persuaded by the Respondent’s evidence that a temporary order permitting her to relocate with the child would be in the child’s best interests. While the court agreed that the Respondent seemed to be thriving with her career and that her standard of living would improve if she was able to relocate and accept the job promotion, the court was not convinced why the Respondent mother had to relocate. The company the Respondent was employed by had multiple locations other than Sarnia and in a world where many employers are permitting employees to work remotely, the Court was not convinced that the Respondent was required to be physically present in Sarnia to accept the job promotion.
The Court relied on the cases of White v Richardson and Prasad v Lee, whereby the courts held that it is almost impossible to determine a mobility issue at a motion stage and it should only be done in cases where it is plain and obvious that the relocation ought to be either permitted or denied. The Court did not agree that this was one of those exceptional cases. Rather, the court found that the Applicant’s proposal for a 4-day schedule would allow for more stability and predictability and would be in the children’s best interests. The court also noted that this proposal would reduce the amount of interaction that the parties would be required to have with one another given the animosity that had developed between them throughout these proceedings.
Amongst other things, the court ordered that the child’s residence should be Beachville, Ontario, that the relocation claim be adjourned to trial and that the parties enter into a shared-care parenting time arrangement with a four-day rotating schedule.
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