Case in Brief

Barendregt v. Grebliunas

The Supreme Court rules children can relocate within British Columbia to live with their mother.

This is a child custody case. The mother and father met in 2011. Soon after, the mother moved to Kelowna, where the father was living. They got married, bought a house and had two boys. When their relationship ended in 2018, the mother took the children to her parents’ home in Telkwa, a 10-hour drive from Kelowna.

The children split their time between Telkwa and Kelowna before the parents agreed the children should remain in Kelowna with the father until the mother returned there, although she never did return. Instead, she asked the court to relocate the children to Telkwa. If not, she said she was willing to move to Kelowna, but the father was unwilling to move to Telkwa.

At trial, the judge said the children could move to Telkwa with the mother for two reasons: the bitter relationship between the parents affected the children; and the father might not be able to afford to stay in the Kelowna home. The father then appealed to British Columbia’s Court of Appeal, asking to present additional evidence about his financial situation.

The Court of Appeal sided with the father. It allowed the new evidence, saying it affected the trial judge’s finding about the father’s finances. As a result, the relocation could no longer be justified. The mother then appealed to the Supreme Court of Canada.

The Supreme Court has sided with the mother.

The new evidence should not have been allowed on appeal.

Writing for a majority of the judges of the Supreme Court, Justice Andromache Karakatsanis said the children can move to Telkwa with their mother.

The majority said the Court of Appeal was wrong to apply a different test than that set out by the Supreme Court in Palmer v. The Queen when deciding whether the father could present new evidence. As the majority explained, this test applies to evidence even at the appeal stage. According to the test, four criteria must be met for the evidence to be allowed: (1) despite the party’s due diligence, the evidence could not have been presented at trial; (2) the evidence is relevant; (3) it is credible; and (4) it could have affected the result at trial.

In this case, the test was not met because the evidence about the father’s finances could have been presented at trial if he had taken all reasonable steps to obtain it in time.

The move is in the children’s best interests.  

The majority said there was no reason for the Court of Appeal to change the trial judge’s decision. The move was in the children’s best interests. There was a significant risk that the bitter relationship between the parents would affect the children if they stayed in Kelowna. Also, the mother needed her parents’ help to care for the children, and they are in Telkwa.

In such cases, the question is “whether relocation is in the best interests of the child, having regard to child’s physical, emotional and psychological safety, security and well-being”, the majority said. The analysis is highly fact-specific and discretionary, and the possibility for change on appeal is very narrow.

Cases in Brief are prepared by communications staff of the Supreme Court of Canada to help the public better understand Court decisions. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.