[1]               This appeal is about a mother’s relocation, or mobility, application and engages the recent amendments to the Divorce Act, RSC 1985, c3 (2nd Supp) relating to such applications. The chambers judge dismissed the mother’s application to relocate to Bulgaria with her two children who were nine and four at the time of the application: Nurmi v Nurmi, Endorsement August 11, 2022. The mother appeals asking this Court to reverse the chambers judge’s decision and permit her to relocate with the children or, alternatively, to order a new hearing. For the reasons below, the appeal is granted, and a new hearing is permitted.

[2]               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 the maternal grandmother who was diagnosed with cancer. The father consented to the trip. It was intended to be a short visit but was extended as a result of a death in the family while in Bulgaria. The visit was extended (with the father’s consent) until December 2021. While in Bulgaria, by October 2021, the parties’ relationship broke down, and there is agreement that they were separated by that time.

[3]               While still in Bulgaria, the mother indicated a desire to stay indefinitely with the children, but the father refused his consent. The mother returned with the children in December 2021. Around the same time, legal proceedings were commenced by both parties, which resulted in the relocation application being heard in May 2022.

[4]               The chambers judge denied the mother’s application.

[5]               The mother raises two grounds of appeal, but we need only address the first ground: that the chambers judge erred in the application of the burden of proof.

[6]               The Divorce Act amendments related to relocating became effective March 1, 2021: sections 16.9-16.96. These sections address both procedural and substantive requirements of a relocation application. As the Supreme Court of Canada noted, these amendments codify both the legal framework first articulated in Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27 for determining whether relocation is in the best interests of the child and also the principles that have developed after 25 years of applying Gordon v Goertz: Barendregt v Grebliunas, 2022 SCC 22 at paras 105-110. One of these areas relates to burden of proof as discussed below.

[7]               Portions of the Divorce Act relevant in this case include:

[8]               In effect, the burden of proof section recognizes that in the post Gordon v Goertz jurisprudence, relocation was more likely to be approved when the clear primary caregiver for a child sought to relocate. The parent who cares for a child on a daily basis is in a unique position to assess what is in their best interests: Barendregt at paras 119, 121. Section 16.93(2) converts that practice into a legal presumption. Such a presumption brings clarity to the law, but do not relieve the chambers judge of the obligation to determine the best interests of the particular child in the particular circumstances of the case: Barendregt at para 123. The ultimate test to be applied in relocation cases:

[9]               The evidence in a relocation application should address this question. It is only when the evidence does not allow a chambers judge to decide whether it is in the child’s best interests to relocate or stay that the presumption, if there is one, plays an important role.

[10]           In this case, the chambers judge made a finding that the mother was the primary caregiver; and since she wanted to locate, there was a presumption that it was in the best interests of the children to relocate. The burden fell on the father to demonstrate that relocation would not be in the best interests of the children. This finding was not disputed on appeal.

[11]           We agree that the chambers judge fell into error in applying the burden of proof. In fairness, the evidence before him 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. In these circumstances, the chambers judge concluded at paras 91-93:

[12]           There are two problems with this reasoning. One relates to the burden of proof, and one relates to avoiding the double bind.

[13]           First, with respect to the burden of proof, the chambers judge erred in his assessment of the evidence in two different ways. He said he could not determine whether it was in the children’s best interests to stay or go given the lack of evidence about parenting arrangements in either of the two scenarios: “neither party provided sufficient evidence to allow the Court to properly determine the best interests of the Children” (reasons at para 91). With this conclusion, the chambers judge had two opposite options:

[14]           Instead, by dismissing the mother’s application, the chambers judge effectively concluded that it was in the best interests of the children to remain in Calgary with their father. This was in error. He had already determined there was not sufficient evidence to permit a determination of their best interests.

[15]           In so doing, the chambers judge fell into the second related error with respect to the double bind even though he properly instructed himself about s 16.92(2). Section 16.92(2) codifies avoidance of the double bind that applicants are put in if they are asked whether they would still relocate if the application to move the children is denied. The risk is seemingly selfish if they say “yes”, or not committed to going if they say “no”: Spencer v Spencer, 2005 ABCA 262 at para 18; Barendregt at para 137. Section 16.92(2) precludes the court from considering whether the moving parent would relocate with or without the children. So, the options are to assume the applicant will relocate and consider whether it is in the best interests of the children to relocate with the applicant or to remain with the respondent. Remaining with the applicant 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 would be able to care for the children given his job commitments nor how he would facilitate contact with the mother. The chambers judge’s conclusion that it was not in the children’s best interests to relocate with the mother to Bulgaria seems to have been based on the assumption that the mother would stay in Canada if her mobility application was denied.

[16]           As noted earlier, the underlying presumption in favour of the primary caregiver is the assumption they will always ensure that the children are looked after as they have for the “vast majority of time” that they have cared for the children: s 16.93(2). In a case where all of the evidence has been assessed by a court and the outcome is unclear, then the presumption can help the court make the decision.

[17]           As such, the appeal is granted. In light of the concerns of the chambers judge about the nature of the evidence and in light of the time that has passed, we decline to reverse the chambers judge decision and grant the relocation order. Rather, the mother has leave to bring a new application for relocation to the Court of King’s Bench if she so wishes.