Relocation and The Burden of Proof
Conor Kopczynski
In March of 2021 significant changes were made to the Divorce Act, introducing provisions to guide parents wishing to relocate with their children after a divorce or separation. The relocation provisions begin at section 16.9 and set forth various criteria that must be met to obtain court approval for the move. An essential aspect of this process is the burden of proof, outlined under section 16.93. The burden of proof provisions determine which party must present evidence and satisfy the legal test, ultimately leading to the decision of whether a child can relocate or not. This article aims to delve into the complexities of the burden of proof in relocation cases and the implications it holds for all parties involved.
The Complexity of the Burden of Proof
The burden of proof in relocation cases adds complexity to an already sensitive legal matter. Depending on the existing parenting arrangement between the parties, the burden can fall on either the relocating parent (the “Applicant”) or the parent opposing the relocation (the “Respondent”). If the parenting arrangement stipulates that the children spend “substantially equal time” with each parent, the relocating parent must prove that the move is in the best interests of the child. Conversely, if the children spend the “vast majority” of their time with the parent seeking relocation, it is the opposing parent who must demonstrate that the move is not in the child’s best interests.
However, in situations where the parenting arrangement does not fall into either of these categories, both parties must bear the burden of proving whether relocation serves the child’s best interests. The burden of proof complicates the relocation process as it requires a more detailed assessment of various factors that may influence the child’s well-being and future.
The Significance of Determining the “Vast Majority” of Time
A critical aspect that arises in cases where the “vast majority” of time is the determining factor is defining what, exactly, constitutes the “vast majority”. The Court’s definition of this term plays a crucial role in deciding which party ultimately bears the burden of proof and affects the presumption that follows. For instance, in the case of Rinetti v Kent, 2022 ABQB 1, the Court suggested that the “vast majority” should be set around the 80% mark. Notably, Professor Rollie Thompson, a respected authority on family law, has also advocated for the 80% threshold.
Consequently, if a parent seeks to relocate based on the claim that they care for the children at least 80% of the time, they must provide evidence to substantiate this claim. Only then can they enjoy the presumption that the relocation is in the children’s best interest. As such, determining the parenting arrangement at the beginning of the proceedings becomes paramount, as it sets the foundation for the burden of proof and the subsequent arguments presented by both parties.
The Impact of Primary Caregiving on Relocation Decisions
In cases where the primary caregiver, who spends the majority of the time caring for the child, seeks to relocate, the courts are more likely to approve relocation. The Court of Appeal’s decision in Nurmi v Nurmi, 2023 ABCA 123, establishes a presumption that favours the primary caregiver’s relocation request. This presumption arises from the belief that the primary caregiver is in the best position to assess and understand the child’s best interests, given their day-to-day involvement in the child’s life.
The Supreme Court of Canada, in Barendregt v Grebliunas, 2022 SCC 22, highlighted the significance of the primary caregiver’s role and stated that a move is more likely to be approved if the primary caregiver seeks to relocate. On the other hand, if there is a shared parenting arrangement, the courts may be less inclined to grant relocation requests. This distinction again emphasizes the importance of determining the parenting arrangement when considering a potential relocation.
Conclusion
The burden of proof in relocation cases under the amended Divorce Act has introduced complexities that have a significant impact on the outcomes of such legal proceedings. Depending on the parenting arrangement between the parties, the burden can either be placed on the relocating parent or the parent opposing the move. Additionally, the determination of the “vast majority” of parenting time plays a crucial role in deciding which party must prove their case and whether a party enjoys the best interest of the child presumption in their favour.
The primary caregiver’s role holds significant weight in relocation decisions, with courts favouring the relocation requests of the parent who has been the primary caregiver for the child. Ultimately, it is vital for the parents involved in relocation cases to understand the burden of proof provisions and the implications they have on their specific circumstances.
As with any legal matter, seeking professional legal counsel is strongly advised to navigate the complexities of relocation cases successfully. An experienced family law lawyer can provide invaluable guidance and representation to ensure that the best interests of the child are upheld while safeguarding the rights of all parties involved. If you are thinking of relocating or are in opposition to a relocation, contact our office for a consultation.