This Month in Family Law Feature: Barendregt v Grebliunas

This Month in Family Law Feature: Barendregt v Grebliunas

August 24, 2022
Barendregt v Grebliunas, 2022 SCC 22
Justices Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
Subject matter: Evidence on Appeal | Custody | Relocation

This appeal concerns a mother’s application to relocate the children from their father’s home in Kelowna, British Columbia, to her home in Telkwa, British Columbia. At trial, Justice Saunders ordered that the children relocate, finding that decided that the mother’s home was more habitable. Additionally, the parents had an acrimonious relationship, and the mother was more likely to promote a positive attitude about their father in the children.

On appeal, the father sought to present evidence that he had significantly improved the habitability of his home. The Court of Appeal characterized this evidence as “new” as it had not existed at the time of trial, and admitted the evidence. The Court of Appeal concluded that with the renovations done, it was in the children’s best interests to stay in Kelowna.

First, the Supreme Court of Canada (SCC) addressed the applicable test for new evidence on appeal. The SCC concluded that the Court of Appeal erred by not applying the test set out in Palmer v The Queen, [1980] 1 SCR 759. The overarching consideration of the Palmer test is the interests of justice, not when the evidence came into existence. The Court found that the additional evidence “did not satisfy the Palmer test because it could have been available for trial with the exercise of due diligence” and should not have been admitted.

Second, the SCC addressed the framework governing relocation cases. The leading case is Gordon v Goertz, [1996] 2 SCR 27. The Gordon framework has largely been codified in amendments to the Divorce Act. However, it is a highly contextual inquiry. Accordingly, the Court uses this opportunity to streamline the factors that should be considered under the second stage of the framework.  It is important to note that the Court does not carve out a new test. It refines the Gordon factors that have become unclear through 22 years of jurisprudence and codification.

The Gordon framework was created in the context of a variation order. Accordingly, the first stage of that framework required a material change in circumstances. The SCC concluded that going forward the Gordon framework can be used when either there is a material change in circumstances or to determine the best interests of the child at first instance.

The second stage of the inquiry analyses whether relocation is in the best interests of the child, “having regard to the child’s physical, emotional and psychological safety, security and well-being”.

When determining whether relocation is appropriate, a court “shall consider all factors related to the circumstances of the child” including “each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent”. The overarching principle is that “a child should have as much time with each parent, as is consistent with the best interests of the child”. The SCC lists several illustrative factors to be considered: the child’s views and preferences; the history of caregiving; any incidents of family violence; and a child’s cultural, linguistic, religious and spiritual upbringing and heritage.

Additionally, courts should also consider: the reasons for the relocation; the impact of the relocation on the child; the amount of time spent with the child by each person who has parenting time or a pending application for it and the level of involvement in the child’s life of each of those persons; the existence of an order, or agreement that specifies the geographic area in which the child is to reside; the reasonableness of the proposal of the person who intends to relocate the child taking into consideration, among other things, the location of the new place of residence and the travel expenses; and whether each person who has parenting time or decision-making responsibility or a pending application for it has complied with their obligations under family law legislation, an order, or agreement, and the likelihood of future compliance.

Finally, courts should not consider whether the parent who intends to move would relocate without the child.

Applying this framework, the Court concluded that the trial judge’s decision was free from material error. Due to the acrimonious relationship between the parties and the mother’s ability to facilitate a positive relationship between the children and their father, the appeal was allowed, and the trial judge’s decision was restored.

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