It is assumed that the primary caregiver will always ensure that the children are looked after
The Alberta Court of Appeal has upheld the presumption in favour of primary caregivers in a child relocation case.
In Nurmi v Nurmi, 2023 ABCA 123, Elina Nurmi appealed a decision denying her application to relocate to Bulgaria with her two minor children. Elina was born in Bulgaria and came to Canada in the 1990s. She married Calvin Nurmi in 2013.
In 2021, Elina went to Bulgaria with the children to accompany her mother, who was sick. Calvin consented to the trip. Elina intended the visit to be short, but she extended the stay due to a death in the family while they were in Bulgaria.
While in Bulgaria, Elina and Calvin' Calvin's relationship broke down, and they agreed to separate. Elina wanted to stay indefinitely in Bulgaria with the children, but Clavin refused to consent. The mother returned with the children to Canada and filed a relocation application with the court, but the chambers judge denied her application. On appeal, Elina argued that the judge committed an error in applying the burden of proof.
The Alberta Court of Appeal noted that the Divorce Act allows courts to authorize a party to relocate with a child if it finds it is in the child's best interests to allow the relocation.
The court further acknowledged that the burden of proof changes depending on the circumstances. 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 child's best interests. Suppose there is a primary caregiver with whom the child spends the "vast majority" of their time, and the primary caregiver wants to relocate. In that case, the party opposing the relocation has the burden to show relocation would not be in the child's best interests. In other cases, the parties "have the burden of proving whether the relocation is in the child's best interests."
The court underscored that relocation was more likely to be approved when the clear primary caregiver of a child sought to relocate. The court said that the parent caring for a child daily is uniquely positioned to assess what is in their best interests.
The appeal court noted the chambers judge's finding that the mother was the primary caregiver. Since she wanted to relocate, there was a presumption that it was in the children's best interests to relocate. The burden fell on the father to demonstrate that relocation would not be in the children's best interests.
The chambers judge ruled that the parties failed to provide sufficient evidence to help the court properly determine the children's best interests. With this conclusion, the appeal court pointed out that the chambers judge had two opposite options—apply the presumption in favour of the primary caregiver and permit the children to relocate to Bulgaria or adjourn the proceedings to allow the parties to address the gaps in their evidence so that the court could determine the best interests of the children.
Instead, the judge dismissed the mother's application. As a result, according to the appeal court, the judge effectively concluded that it was in the children's best interest to remain in Calgary with their father. The appeal court emphasized that the judge's decision was an error because he had already found insufficient evidence to determine the children's best interests.
The appeal court further explained that the chambers judge fell into a "double bind" error in s. 16.92(2) of the Divorce Act precludes the court from considering whether the moving parent would relocate with or without the children. The court said that the options are to assume the mother will relocate and consider whether it is in the children's best interests to relocate with their mother or to remain with their father. Staying with their mother in Canada is not an option for the court to consider. While the chambers judge acknowledged that he had to choose between two incomplete scenarios, he never addressed how the father could care for the children given his job commitments nor how he would facilitate contact with the mother.
The appeal court found that the judge’s conclusion that it was not in the children's best interests to relocate with their mother to Bulgaria seemed to have assumed that the mother would stay in Canada if her mobility application was denied.
The appeal court ruled that in a case where the court has assessed all the evidence and the outcome is still unclear, the presumption that the primary caregiver will always ensure that the children are looked after could help the court make the decision. Accordingly, the court granted the mother's appeal.
