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  • Writer's pictureJared Davies, Lawyer

Relocation on a temporary basis pursuant to Shearhart v Shearhart, 2023 ONSC 4931

Background

One of the central issues in Shearhart v Shearhart, 2023 ONSC 4931 is whether the Applicant should be permitted to relocate with her children from Oakville to Brampton. The parties involved have presented contrasting arguments, creating a challenging situation for the court to resolve.


For context, the Applicant argued that relocating to Brampton would significantly benefit her children. She emphasized that her new residence in Brampton is within walking distance of the schools. In contrast, the children would face substantial commutes to Oakville for their schools, which have different start times. Furthermore, the Applicant contended that the Respondent, who works in the Brampton/Mississauga area, could conveniently facilitate pick-ups and drop-offs during his commute.


Conversely, the Respondent opposed the relocation, asserting that it would not be in the children's best interests and would disrupt the established status quo. He argued that there was no compelling evidence to support the Applicant's claims, and in fact, maintaining the current arrangement would be more advantageous for the children.


Legal Issue


Should the court grant authorization for the Applicant's proposed relocation?


Legal Analysis


Defining Relocation: The Divorce Act defines "relocation" as a change in the place of residence of a child of the marriage likely to significantly impact the child's relationship with a person who has parenting time, decision-making responsibility, or contact. This definition forms the basis for evaluating the Applicant's proposed move.


Burden of Proof: The Divorce Act specifies different burdens of proof depending on the circumstances. In this case, the burden rests on the Applicant seeking relocation due to substantial compliance with the parenting time order, which outlines equal parenting time.


Interim Relocation: Courts are generally cautious about authorizing relocation on interim motions. The moving party must have a compelling circumstance or reason to justify it.


Best Interests of the Child: The paramount consideration in any relocation case is whether the move is in the best interests of the child. This determination requires a comprehensive analysis of various factors, including the child's views, history of caregiving, presence of family violence, reasons for relocation, impact on the child, and the level of parental involvement. There are additional considerations in the Divorce Act and the Supreme Court of Canada case of Barendregt v Grebliunas, 2022 SCC 2 provides guidance.


Current case: In the current case, the court outlined its findings at paragraph 22:


a. the children’s views and preferences – the applicant has adduced no evidence that the children’s views and preferences favour relocation;


b. the history of caregiving – as outlined above, the applicant has adduced no evidence that childcare arrangements were historically anything other than equal, the parties previously agreed to an order for substantially equal parenting time and they have each sought equal parenting time on these motions;


c. any incidents of family violence – the applicant has adduced no evidence of family violence and the investigations of both the police and the CAS have identified no applicable concerns;


d. the reasons for the relocation – the applicant’s stated reasons for relocation are that her “friend group” is in Brampton, the family (except L) previously lived in Brampton before moving to Oakville seven years ago and the cost of housing, none of which is supported by any evidence that her proposed relocation is in the children’s best interests;


e. the impact of the relocation on the child – the applicant has adduced no evidence that the impact of her proposed relocation will positively impact the children;


f. the amount of parenting time spent with the child and the level of the parties’ involvement in the child’s life – as outlined above, the applicant has failed to adduce any evidence that the parties’ parenting time and level of involvement in the children’s life has been anything other than substantially equal;


g. the reasonableness of the relocating party’s proposal to vary parenting time, decision-making responsibility, taking into consideration, among other things, the location of the new place of residence and the applicable travel expenses – the applicant’s proposal respecting a variation of parenting time is to leave it as equal and she has made no proposal to vary decision-making responsibility or to contribute to any applicable travel expenses; and


h. whether the parties have complied with their respective obligations under statute, a court order, arbitral award or agreement and the likelihood of future compliance – there is no evidence that there has been any applicable non-compliance with court orders (in fact, the evidence is that the parties have been diligently complying with my June 1, 2023 consent order) or that the court should be concerned with any applicable non-compliance in future.


Conclusion


Upon thorough analysis, the court determined that the Applicant's request for relocation should be denied. The Applicant did not meet the burden of proof required under the Divorce Act for the relocation. The Applicant failed to demonstrate compelling circumstances that would justify the relocation on an interim motion. The court concluded that the proposed relocation was not in the best interests of the children. It would disrupt their schooling, negatively affect their relationships, and create a substantial geographical distance between their residences.


The court considered the established status quo of the family's residence in Oakville for the past seven years and the advantages this offered. Ultimately, the court found that the Applicant’s request for relocation should be denied. This case illustrates the complexity of child relocation issues and highlights the court's unwavering commitment to prioritizing the best interests of the child, even when dealing with emotionally charged family disputes. It also underscores the importance of meeting the Applicable burden of proof and demonstrating compelling reasons for relocation in family law cases.

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