Who Has the Burden of Proof in Relocation Applications? An Alberta Case Study of Nurmi v Nurmi
By David Kim, Family Lawyer
As featured in Law 360
When parents separate or divorce, relocation of a child may become a contentious issue. In such cases, the Alberta court applies a legal test to determine whether relocation is in the best interests of the child. However, the application of this test can be complicated, particularly when there are gaps in evidence. This article explores the legal test for mobility/relocation applications in Alberta and how the court handles cases where best interests are not immediately clear.
In a perfect world, there would be enough evidence before the court to address this relatively straightforward question but, in practice, there are often gaps in the evidence and it is not always immediately clear to a judge if relocation is indeed in the child’s best interests. Interestingly, when this occurs and the court cannot determine best interests, the application does not necessarily fail. Instead, the application may be decided based upon a legal presumption enjoyed by the primary parent if there is one.
Burden of Proof
Complicating matters in mobility applications is the issue of the burden of proof. Simply put, burden of proof refers to which party is responsible to produce the evidence to prove the legal test. In most court applications, the burden of proof lies with the party making the claim, or “the Applicant”. If the Applicant cannot present the necessary evidence, their application fails.
However, relocation applications have a peculiar twist where the burden of proof changes depending on the circumstance, according to section 16.93 of the Canada Divorce Act. For example, if the child spends equal time with each parent, the burden falls on the parent wanting to relocate to prove that relocation would be in the best interests of the child, according to s. 16.93(1). If there is a primary caregiver with whom the child spends the "vast majority" of their time, and the primary caregiver wants to relocate, the party opposing the relocation has the burden to show that relocation would not be in the best interests of the child, per s. 16.93(2). In all other cases, “the parties have the burden of proving whether the relocation is in the best interests of the child", per s. 16.93(3).
Why is the Burden of Proof set up like this in Relocation Applications?
Historically, relocation was more likely to be approved by the courts when the clear primary caregiver sought to relocate with the child and less likely to be approved when there was an equal shared parenting arrangement. This was because, in the words of one court, Barendregt at paragraph 119, “the parent who cares for a child on a daily basis is in a unique position to assess what is in the child’s best interest.”
This creates a presumption in favour of the primary parent which essentially assumes that it is in fact in the child’s best interest to relocate with the primary parent. Specifically, the underlying presumption in favour of the primary caregiver is that they will always ensure that the children are cared for as they have been doing for the "vast majority of time". This, in turn, shifts the burden of proof to the non-primary parent. Section 16.93(2) of the Canada Divorce Act simply codifies this presumption into law.
Nurmi v Nurmi
In the 2023 Alberta case of Nurmi v Nurmi, the Alberta Court of Appeals dealt with an application by a mother who sought to relocate with her two children, aged four and nine, to Bulgaria. The lower (chambers) court initially dismissed the mother’s application, which she ended up appealing to the higher court.
The mother was born in Bulgaria and came to Canada in the 1990s. The parties were married in 2013. The mother went to Bulgaria with the children in September 2021 to accompany her mother who was diagnosed with cancer. The father consented to the trip.
Although the trip was intended to be short, it was extended as a result of a death in the family during their visit which resulted in the trip being extended with the father's consent until December 2021. While in Bulgaria, the parties' relationship broke down and the mother indicated a desire to stay indefinitely with the children, but the father refused to consent. The mother returned with the children in December 2021 and began court proceedings.
Critically, the chambers judge found that the mother was the primary caregiver, and this was not disputed by the father. Therefore, per s. 16.93(2), the mother enjoyed the presumption that it would be in the children’s best interest to relocate with her and therefore, the burden of proof fell on the father to show it was not – at least, that’s what should have resulted. Instead, the chambers judge determined there was not enough evidence to determine the children’s best interests, but then concluded that the children should stay in Calgary with the father, effectively determining the best interests of the children (was to live in Calgary, not Bulgaria). As the appellate court stated, at para 11:
“In fairness, the evidence before [the chambers judge] can be summarized this way. The mother initially wanted to go to Bulgaria to support her sick mother, then decided she wanted to stay as she thought her children could thrive there. She had a job offer but not a detailed plan to explain how the children would be looked after while she was working. She had a vague plan or suggestion as to how she would facilitate contact between the father and the children. The chambers judge found both lacking in detail. The father opposed the application and was able to point to flaws in the mother's plan. However, the father offered no information about how he would care for the children or how he would facilitate contact with the mother while she was in Bulgaria, and the children remained in Calgary with him.”
Therefore, given that the chambers judge found there was insufficient evidence to determine best interests, the judge should have opted to either:
- apply the presumption under s 16.93(2) in favour of the primary caregiver (the mother) and permit the relocation with the children to Bulgaria; or
- adjourn the proceedings and give the parties an opportunity to address the gaps in the evidence, if they could, in order for the court to determine the best interests of the children.
By denying the mother's application, the chambers judge failed to correctly apply the burden of proof presumptions contained in s. 16.93(2) which, when correctly applied, should have resulted in the father carrying the full burden of proof and the mother not having to prove anything (beyond her primary caregiver status). This was a critical error that ultimately resulted in the Court of Appeal granting the mother’s appeal and permit her to file a new application for relocation.
The Nurmi v Nurmi case reminds us of the importance of determining the parenting arrangement at the outset because this will determine which party enjoys the presumption and which will have a burden of proof, which can often be difficult to meet. If you need with help solidifying your parenting agreement or with any other family law issues, the team of knowledgeable lawyers at Crossroads Law are ready to help. To find out more, you can book a free 20-minute consult with any one of our family lawyers today.