The parties in this matter resided in Sault Ste. Marie and were of indigenous heritage. Their daughters were aged 17.5 years and 15 years. The mother was Australian and sought an order allowing her to take the children to Australia from January to August 2023 to visit family and to become acquainted with their Australian culture.
The father was not agreeable to this move. He cited the youngest daughter’s weak mental health as a reason to oppose the move and thought that the trip was the mother’s attempt to permanently relocate to Australia.
There was no court order regarding parenting time, and some disagreement as to the current schedule in place, with the mother claiming it was a 5:3 split (5 nights with the mother, 3 with the father). The father claimed the schedule was a week-about one until the mother changed it.
Should the mother be permitted to take her proposed six-month trip with the children?
The Court was provided with affidavits from the parties in support of their respective positions, as well as affidavits from the children. No value was given to the affidavit of the commissioner of the children’s affidavits as their statement that the children did not appear to have been influenced into sharing their views was not that from a professional trained in the area of child alienation.
Section 24 of the Children’s Law Reform Act (CLRA) was relied upon to determine the best interests of the children. As per subsection 2 of this section, the children’s physical, emotional, and psychological safety, security, and well-being were to be given primary consideration.
Although the trip in question was not technically a relocation, the extended length of the trip warranted the Court considering the legislation relevant to relocation – section 39.4 of the CLRA, which identifies the test to be used in determining whether a relocation is in a child’s best interests.
Sections 39.4(5) to 39.4(7) of the CLRA explain the burden of proof on parties where relocation is opposed:
(5) If the parties to the proceeding substantially comply with an order, family arbitration award, or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
(6) If the parties to the proceeding substantially comply with an order, family arbitration award, or agreement that provides that a child spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
The Court pointed out its practice of determining the best interests of children in relocation matters on a case-by-case basis. Here, the court found that, firstly, either both children should be permitted to attend the trip to Australia, or both should be denied the opportunity. Allowing one child to go, whilst holding the other back was not an option given the children’s ages and their emotional bond.
It was found that the trip would be in the eldest daughter’s best interests, but not in that of the youngest daughter. The eldest had expressed her desire to attend the trip, and given that she was almost an adult, her views/preferences were almost determinative.
On the other hand, the youngest daughter was not a “virtual adult” and, thus, her views were not determinative. The Court took the position that the youngest daughter’s mental health was not always “robust”, and so a trip that would lead to her having to reintegrate into school (both in Australia and then in Canada), could be challenging for her.
Furthermore, the girls would be away from their father and his side of the family during this trip – this was a negative consequence to be given considerable weight.
The Court ultimately decided that the trip was not in the youngest child’s best interests and that its negative effects outweighed the benefits that could be incurred by both children. The burden of the proof issue was not considered - though the Court found that a 5:3 split schedule was currently in place, it was not sure for how long this schedule had been in place. Since the trip was found not to be in the children’s best interests, there was no need to determine which party had the burden of proof.
Obiter, the Court told the parties that affidavits sworn by children should be strongly avoided as they force children to testify against a parent. Nonetheless, the father was encouraged to consider whether the affidavits reflected the children’s true wishes and, if so, to permit the trip in order to strengthen his relationship with the children.