This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

Wu v. Yu 2022 ONSC 3661 is a recent case from the Superior Court of Justice involving an interim relocation of over 4,000 kilometers, from London, Ont., to Burnaby, B.C. In the decision, Justice Timothy Price provides an in-depth analysis of the new amendments to the Divorce Act regarding interim relocations and the shifting evidentiary burden of proof in these cases.

It remains to be seen how these new Divorce Act provisions will be interpreted as more relocation cases are adjudicated by the courts;  however, Justice Price’s analysis provides an extensive introduction to the amendments and their impact on interim relocation decisions in particular.

In Wu v. Yu, the mother brought a motion requesting an order that she have primary care of the parties’ 4-year-old child and an order permitting her to move to Burnaby with the child as of July 1, 2022. The father asked that the motion be dismissed and took the position that the child should be in the equal care of each of the parties on a 50/50 basis.

Justice Price granted the mother’s request to relocate with the child to Burnaby and in doing so, considered the factors under the amended Divorce Act, specifically, the provisions related to notice under s. 16.9(1), the best interests of the child under s. 16.92 and 16(1)-(6) and the burden of proof under s. 16.93.

The court first considered the decision of Barendregt v. Grebliunas 2022 SCC 22, a recent decision by the Supreme Court of Canada. In Barendregt, the court wrote that the Supreme Court of Canada decision of Gordon v. Goertz, [1996] 2 S.C.R. 27, which has been governing authority for mobility applications for more than 25 years, sets out a two-stage inquiry for determining whether to vary a parenting order under the Divorce Act and permit a custodial parent to relocate with a child: 1) the party seeking a variation must show a material change in the child’s circumstances and 2) the judge must determine what order reflects the child’s best interests in the new circumstances. The Supreme Court in Barendregt made clear that the new statutory regime in both the Divorce Act and provincial legislations largely codified the court’s framework in Gordon.

In Barendregt, like in Wu v. Yu, the court was addressing a mobility issue raised at first instance where there was no existing order under the Divorce Act. The court clarified how these cases should be determined and stated, “[w]ithout a pre-existing judicial determination, a parent’s desire to relocate is simply part of the factual matrix in the assessment of what parenting  arrangement is in the best interests of the child.” The court further explained that the first stage of Gordon, which sets out the usual requirement for a variation order, has no application in cases where a mobility issue is raised at first instance.

After referencing Barendregt and the new statutory provisions, Justice Price considered the issue of onus. Onus, or burden of proof, is found at s. 16.93(1) of the Divorce Act and states that if the parties to the proceeding are substantially complying with an order, arbitral award, or agreement that provides that a child of the marriage spends 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.

Section 16.93(2) states that if the parties are complying with an order, arbitral award or agreement that provides the child spends the vast majority of their time in the care of the party who intends to relocate with 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.

Under 16.93(3), in any other case, the parties have the burden of proving whether relocation is in the best interests of the child.

The parties disagreed regarding whether there was an “agreement” which provided that the child spent the vast majority of her time in the mother’s care. The mother argued that there was an agreement of this nature, as the parties had incrementally increased the father’s time with the child since the separation, which left the child primarily in the mother’s care.

The father argued that he had been trying to secure a 50/50 parenting agreement since the moment the parties separated but was compelled to accept the incremental increases in parenting time due to the mother’s resistance to his proposals. The father argued that s. 16.93(1) applied, as the agreement to be relied upon was that which underlay the status quo which existed before the parties separated.

Justice Price took note of the fact that on the date of separation, the father was arrested by the police and was prevented from returning to the home where the child was residing with the mother. He therefore found that there was no freely negotiated agreement between the parties and the situation with the child residing primarily with the mother was imposed on the father by the criminal justice system. The trial had not yet been heard, therefore the father was presumed innocent. Justice Price therefore stated that was no order, arbitral award or agreement between the parties and therefore, each party bore the onus of establishing their position on a balance of probabilities.

Justice Price went on to consider each of the best interests factors under s. 16(1)-(6) and the additional factors under s. 16.93 of the Divorce Act. Justice Price found that although the father was willing to care for and meet the child’s needs, prior to and since separation, more of the parenting tasks fell to the mother, and she took on the primary parenting responsibilities.

Of note, in considering the reasons for the relocation, the court considered cases where employment was the driving force in the proposed relocation. In this case, the mother, a doctor, had a job offer for a full-time position in obstetrics and gynecology at Burnaby Hospital. Justice Price concluded that the atmosphere to which the child would be exposed with her mother in Burnaby, where her mother would be challenged professionally and happy in her environment, was bound to be better than the atmosphere to which the child would be exposed with her mother working in London in a position that did not provide her with the opportunity to develop her professional skills, distant from her mother and other supports.

There were accordingly compelling circumstances which must exist for an interim relocation to be approved by the court.

The court held that based on the evidence in relation to the statutory factors, it was in the child’s best interests to be placed in the mother’s primary care on an interim basis and to be permitted to relocate on an interim basis to Burnaby with the mother.

Michael Stangarone is a partner and Kira Beck is an associate with MacDonald & Partners LLP, where they practise exclusively family law.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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