Recent case: Supreme Court mobility decision

In Barendregt v Grebliunas, the Supreme Court of Canada considered which parent should have primary responsibility for their two young children and whether the mother could relocate them to a town some distance from where they had been living with their father.

The family was living in Kelowna, British Columbia, when, following an assault by the father on the mother, she took the children to her parents’ home in Telkwa, which was approximately a 10-hour drive away. Initially, the children split their time between their mother, in Telkwa, and their father, in Kelowna, but then they resided with the father only for a few months.

At trial, the judge used the best interests of the child test to determine that the mother should have primary responsibility for the children and that she could relocate them to Telkwa. The judge considered a number of factors, including:

• There had been abuse during the marriage, the separation and family court proceedings
• The father’s behaviour during the trial, such as including a nude selfie of the mother in his affidavit,  was “abusive and highly offensive”
• The father’s dismissive attitude to his behaviour; which he characterized as “friction, [that is] not unusual for separating couples”
• The fact that the mother was more likely to promote a positive attitude by the children towards their father than he was to do so to her
• The mother’s access to a strong support network in Telkwa
• The fact that the family home in Kelowna was uninhabitable due to incomplete renovations

The father appealed, claiming there was fresh evidence with respect to the state of the house and the trial judge had erred in allowing the mother to relocate the children. The Court of Appeal agreed with the father and overturned the trial decision.

The mother appealed the decision to the Supreme Court of Canada. Both West Coast LEAF and the Rise Women’s Legal Centre intervened to raise issues of broader social context, particularly women’s equality and gender-based violence.

In writing for the majority at the Supreme Court, Justice Karakatsanis noted that applying the best interests test can be challenging:

“the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child. The challenge is even greater in mobility cases. Geographic distance reduces flexibility, disrupts established patterns, and inevitably impacts the relationship between a parent and a child.”

She also commented on the importance of family violence in determining what is in the best interests of children:

“The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable.”

With respect to the mother’s wish to move to Telkwa because of the support available for her there, the Supreme Court decision noted that the best interests of children are “furthered by a well-functioning and happy parent” and that emotional support for a parent “can enrich a parent’s ability to cultivate a healthy, supportive and positive environment for their child.”

The Supreme Court of Canada upheld the decision of the trial court, granting primary care of the children to the mother and permitting her to relocate them to Telkwa.