Background

The Mother and Father married in 2013 in Sault Ste. Marie, Ontario. The Mother is an Early Childhood Educator with adult twins from a previous relationship, while the Father works for CN Rail as a Steel Bridge Foreman. They have a Daughter, born in 2014, who suffers from Juvenile Idiopathic Arthritis and Uveitis, requiring significant medical treatment.

The couple separated acrimoniously in January 2021 after an incident involving a homophobic slur by the maternal grandfather. Following the separation, the Daughter primarily stayed with the Mother, with the Father having parenting time every other weekend. The relationship post-separation was marked by ongoing conflicts, including incidents at a wedding in September 2021 and during Easter 2022, leading to Children’s Aid Society (“CAS”) intervention. The Father eventually took the Daughter to Hornepayne without prior notification to the Mother and enrolled her in school there. The Mother later retrieved the Daughter and returned to Sault Ste. Marie without informing the Father.

The Mother initiated the current legal action on September 12, 2022, and secured an Order on October 9, 2022, for the Daughter to reside with her, allowing the Father reasonable parenting time. The Daughter missed over 60 days of school during the 2022-2023 academic year. In January 2024, the Daughter called the police after an argument between the Mother and her adult twin son, leading to a temporary stay with the maternal grandmother.

At trial, the Father argued that he would like to move the Daughter to Hornepayne so that she can enjoy a stable environment without being unduly burdened by the Mother’s mental health struggles. He testified about the Mother’s declining mental health, excessive drinking, and physical altercations during their marriage. He alleged that the Mother had post-separation relationships with known criminals, causing concern for the Daughter's safety. He also expressed concerns about the Daughter’s exposure to these individuals and described the stress caused by the Mother's calls to CAS. He admitted to moving the Daughter to Hornepayne for stability and proposed a permanent relocation for her, citing better living conditions and access to medical care.

The Mother acknowledged her history of depression, anxiety, and counseling, but denied that her mental health affected her parenting. She admitted to physical altercations during their marriage and some post-separation conflicts but minimized their impact. She testified about the routine she and the Daughter followed and defended her decisions regarding the Daughter’s care, including her actions during the Easter 2022 incident, when she sent threatening and aggressive text messages to the Father. The Mother explained the Daughter’s absences from school as being due to medical appointments and denied that the Daughter had nightmares or fears related to her care.

The Law

Section 16 of the Divorce Act outlines the legal framework for making Parenting Orders and addressing child relocation. Under section 16(1), the court is mandated to consider only the best interests of the child when making decisions about Parenting or Contact Orders. Section 16(2) emphasizes that the court must give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being.

In determining whether to authorize a relocation, section 16.92(1) requires the court to consider additional factors beyond those outlined in section 16. These factors include:

1. the reasons for the relocation;
2. the impact of the relocation on the child;
3. the amount of time spent with the child by each person with parenting time or a pending application and their level of involvement in the child's life;
4. whether the relocating party complied with applicable notice requirements;
5. any existing orders or agreements specifying the child’s geographic area;
6. the reasonableness of the relocating party’s proposal to adjust parenting time or decision-making responsibilities, considering travel and expenses; and
7. the compliance of all parties with family law legislation, orders, or agreements and the likelihood of future compliance.

Regarding relocation cases, section 16.93 details the burden of proof. If a child spends substantially equal time with each parent as per a court order, arbitral award, or agreement, the parent intending to relocate the child carries the burden of proving that the move is in the child’s best interests (16.93(1)). Conversely, if the child predominantly resides with the parent planning the relocation, the burden shifts to the opposing party to demonstrate that the relocation would not serve the child’s best interests (16.93(2)). In all other cases, the burden of proof is shared between the parties to establish whether the relocation is in the child's best interests (16.93(3)).

Application

In this case, section 16.92(3) of the Divorce Act applies because the current Parenting Order does not mandate that the Daughter spend "substantially equal time" with both parents, and the parent seeking relocation is not the one with the majority of parenting time. Therefore, both parties share the burden of proving whether the relocation is in the Daughter's best interests.

The court ultimately determined that relocating to Hornepayne with the Father is in the Daughter's best interests. This decision was grounded in several key factors. Firstly, The Mother claimed the Father had a history of abuse and control. However, evidence suggested that the Mother had restricted the Father's involvement with the Daughter, indicating a pattern of control and isolation.

Furthermore, the Daughter’s emotional and psychological stability was identified as a primary concern. While the Father’s relocation plan required some improvements, it was seen as offering a stable environment. The move to Hornepayne would place the Daughter with extended family, within her Indigenous culture, and in a supportive setting. Although the court had reservations about the Father’s communication and mental health management, the plan was deemed overall beneficial for the Daughter.

Conversely, the Mother’s alcohol use, aggressive behavior, and unstable personal interactions were significant issues. The court highlighted that these factors likely contribute to an unstable environment for the Daughter. The Mother’s consistent alcohol consumption, heated incidents, and problematic relationships with individuals of questionable backgrounds posed risks to the Daughter’s emotional well-being. The court also criticized the Mother’s lack of insight into the impact of her behavior on the Daughter and her ineffective communication with the Father.

In conclusion, despite concerns about the disruption caused by relocating, the court found that moving to Hornepayne would provide the Daughter with a more stable environment compared to her current situation with the Mother. The Father's proposed relocation was considered to offer the Daughter greater stability and address the significant emotional and psychological risks present in her current living situation.