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Barendregt v Grebliunas (2022 SCC 22)

Case at a glance
CaseBarendregt v Grebliunas
Citation2022 SCC 22
CourtSupreme Court of Canada
Year2022
TopicParenting & Relocation
Central questionHow do BC courts decide relocation cases?

Key takeaways {#takeaways}

  • Relocation turns on one question — the child's best interests — weighed through factors now codified in the Divorce Act.
  • Evidence you could have led at trial generally cannot be added on appeal; the Palmer test applies.
  • Family violence, even one proven incident, is a significant factor in deciding whether a child moves.

Barendregt v Grebliunas at a glance {#summary}

BC courts decide relocation by asking a single question: is the move in the child's best interests? Judges weigh the reasons for the move, each parent's involvement, the impact on the child, family violence, and each parent's willingness to support the other's relationship with the child — without asking whether the parent would move anyway.

Most people assume an appeal is a second chance to prove your case. Barendregt v Grebliunas, 2022 SCC 22 says it is not. After losing at trial, the father filed an affidavit showing he had refinanced the family home and advanced the renovations — and the BC Court of Appeal accepted it and reversed the relocation order. The Supreme Court of Canada disagreed: that evidence could have been led at trial. The children stayed with their mother in Telkwa, and Canada got one restated framework for every relocation case.

The facts {#facts}

Ashley Barendregt and Geoff Grebliunas met in 2011 in the Bulkley Valley in northern BC. She followed him to Kelowna in 2012. They married, bought a house, and had two boys, aged three and five by the time of trial in 2019 (para 12).

The house was a problem from the start. An electrical fire exposed rodents, water damage, mould, and a compromised floor joist. The father, a carpenter, planned to fix it room by room. Six years later it was still an "ongoing construction project" — even his own witness called it "a working environment, not a living environment" — and the couple was well into six figures of debt (para 13).

The relationship ended in November 2018, when the father "likely" assaulted the mother during an argument. That night she drove the boys about ten hours to her parents' home in Telkwa. An interim arrangement split parenting time between the two towns before the children settled in Kelowna with the father, on the understanding the mother would return. She did not. Instead, she applied to relocate the children to Telkwa (paras 14–15).

After a nine-day trial, the judge gave the mother primary residence and allowed the move. Two things drove the result: the parents' acrimonious relationship — including the assault, "possibly some degree of emotional abuse," and trial conduct the judge called "abusive, and profoundly offensive" — and, less significantly, real doubt that the father could afford to keep the house or make it livable (paras 16–21).

The father appealed. Near the end of the appeal hearing, his lawyer told the court his finances had changed. His affidavit said he had taken steps to buy out the mother's interest, his parents had bought a half interest in the home and extended their credit line, the mortgage had been refinanced at nearly half the monthly payment, and key renovations were done or underway (para 22). The Court of Appeal called this "new" evidence, said the usual admission test did not strictly apply, let it in, and ordered the children back to Kelowna (paras 23–25). That order was stayed while the mother appealed to the Supreme Court of Canada (para 16).

The legal issues {#issues}

The Supreme Court framed two issues (para 26):

  1. What test governs additional evidence on appeal? Does the four-part test from Palmer v The Queen apply to evidence about events that happened after trial, and did the Court of Appeal err by admitting the father's evidence?
  2. Did the trial judge err in his relocation analysis under Gordon v Goertz, such that the Court of Appeal was entitled to intervene?

What the court decided {#decision}

The Court allowed the mother's appeal 8–1 and restored the trial order. Justice Karakatsanis wrote for the majority; Justice Côté dissented in part.

On the evidence. The Palmer test governs all additional evidence tendered on appeal to challenge the decision below, whether the underlying facts arose before or after trial (paras 3, 27, 55). The four criteria: the evidence could not, with due diligence, have been available for trial; it is relevant to a decisive issue; it is credible; and it could have affected the result (para 29). Due diligence looks at the party's conduct — including whether the party's own choices controlled the timing of the new facts (paras 59–60). The father failed this test. His financing and renovations were squarely in issue at trial, and nothing stopped him from locking down commitments before trial rather than after reading the judge's reasons (paras 87–88).

The majority added a family-law point with real bite: parenting orders can be varied when circumstances materially change, so an appeal must not become "a disguised application to vary" (para 80). The father's route through the Court of Appeal let him skip the burden he would have carried on a variation application (para 89).

On relocation. The trial judge made no reviewable error. The Court restated the Gordon v Goertz framework in light of 25 years of case law and the 2019 Divorce Act amendments (in force March 1, 2021): the sole question is the child's best interests (paras 109–111, 152). The relocation was supported by the risk the parents' high-conflict relationship posed to the children, the mother's need for family support available only in Telkwa, her greater willingness to foster the children's relationship with their father, and the findings of family violence (para 189).

The dissent. Justice Côté agreed Palmer applies to both kinds of evidence but would have applied it more flexibly, admitted the father's evidence, and sent the case back to the trial judge (paras 191–194, 230–231).

Where the law stands now. Barendregt remains the leading Canadian authority on both points. For divorcing or divorced spouses, relocation is now governed by the Divorce Act's relocation provisions, including the best-interests factors in s. 16.92, which Barendregt treats as mirroring the refined common law (paras 154, 149–150). For BC parents proceeding under provincial law, the Family Law Act has its own relocation scheme in Part 4, Division 6, ss. 65–71, including notice requirements and its own order provisions. The FLA scheme has details of its own — including burden-of-proof rules — that this commentary does not restate; which statute applies, and what it requires, is something to confirm for your own situation.

How do BC courts decide relocation cases? {#the-test}

The crucial question is whether the move is in the child's best interests, "having regard to the child's physical, emotional and psychological safety, security and well-being" (para 152). The inquiry is highly fact-specific, and appellate courts rarely disturb the answer (paras 100–104).

Barendregt settled five points that come up in almost every BC relocation file:

  • Both parents' views count. The old idea of "great respect" for the custodial parent's views adds little; in shared parenting, both parents' views deserve careful attention (para 119). Where there is a pre-existing order or agreement, the Divorce Act now sets a burden of proof (s. 16.93; paras 122, 149).
  • Reasons for the move matter — without judgment. Courts may consider why a parent wants to move, because the reasons often connect to the child's welfare. But a parent does not have to justify the move, and a weak reason alone should not count against them (paras 127–130).
  • "Maximum contact" is not a trump card. It is better called the parenting time factor: a child should have as much time with each parent as fits the child's best interests — no more (paras 131–135).
  • No double bind. Courts must not ask whether a parent would move (or stay) regardless of the outcome. That question punishes honest answers in both directions (paras 136–140).
  • Family violence is a significant factor. Violence is hard to prove, often happens behind closed doors, and even one proven incident can raise safety concerns and shape the whole analysis (paras 141–147).

The framework {#numbers}

The restated framework draws the relocation-specific factors from s. 16.92(1) and (2) of the Divorce Act (paras 152–154):

Factor What the court asks
General best-interests factors The child's views and preferences, history of caregiving, any family violence, and the child's cultural, linguistic, religious and spiritual upbringing and heritage (para 153)
Each parent's support of the other Is each parent willing to support the child's relationship with the other parent? (para 153)
Parenting time factor The child should have as much time with each parent as is consistent with the child's best interests (para 153)
Reasons for the relocation Why is the moving parent proposing the move? (para 154)
Impact on the child How would the move affect the child? (para 154)
Time and involvement How much time does each parent spend with the child, and how involved is each? (para 154)
Orders or agreements about where the child lives Is there an order, arbitral award, or agreement specifying a geographic area? (para 154)
Reasonableness of the proposal Is the moving parent's plan to adjust parenting time and contact workable, given distance and travel costs? (para 154)
Compliance Has each parent complied with family law obligations, orders, and agreements — and are they likely to in future? (para 154)
Off the table Whether either parent would move, or stay, regardless of the outcome (para 154; s. 16.92(2))

What this means if you're separating in Surrey {#bc-impact}

If you are separating and one of you wants to move with the children — to another BC community or further — Barendregt shapes your case in three practical ways.

First, the trial is the main event. If your ability to house the children, your finances, or your support network is in issue, the evidence has to be ready then. Waiting until after an unfavourable judgment to firm up financing or finish the renovation, as the father did here, will generally not help you on appeal (paras 87–88).

Second, honesty about your plans is protected. You cannot be asked whether you would move without the children, or stay for them. The court decides based on the children's interests, not on testing your resolve (para 140).

Third, if there has been violence in your relationship, it belongs in the case. Courts recognize that family violence is under-reported and hard to corroborate, and it is a significant factor in whether a move is allowed (paras 144–147).

If circumstances genuinely change after a final order, the usual route is a variation application, not an appeal. And many relocation disputes settle without trial — a clear separation agreement or mediation can address moving, notice, and parenting time before positions harden. For the broader process, see divorce in BC and our other case commentaries.

How a lawyer uses Barendregt {#in-practice}

  • Evidence discipline at trial. Barendregt is the authority for insisting a client's best case go in at trial — financing letters, renovation budgets, support commitments — because the appeal door is nearly closed to evidence that could have been obtained earlier (paras 36–43, 87–88).
  • Choosing the right procedure. When facts change after trial, counsel weighs a variation application against an appeal. Barendregt warns that an appeal cannot be used to dodge the burden of proving a material change (paras 75–80, 89).
  • Framing a relocation case. The restated factor list (paras 152–154) is a ready-made structure for affidavits and argument: reasons for the move, impact on the child, caregiving history, plan for continued contact, compliance history.
  • Preparing witnesses. Because courts must not consider whether a parent would move regardless of the outcome, counsel can keep cross-examination away from the double bind and object when it appears (paras 136–140).
  • Family violence evidence. Barendregt supports leading evidence of violence even where the other side calls it ordinary separation "friction," and supports deference to trial findings about it on appeal (paras 141–147, 176–188).

Frequently asked questions {#faq}

Can I move with my children before anything is decided?

Be careful. BC's Family Law Act has a relocation scheme with notice requirements (ss. 65–71), and the Divorce Act has its own rules for divorcing spouses. Moving first can also affect how a court later views your willingness to support the other parent's relationship with the child. Get advice on which scheme applies before acting.

Does past violence in the relationship affect a relocation case?

Yes. Barendregt confirms family violence is a significant factor. Courts must consider any form of family violence and its impact on the perpetrator's ability to care for the child, and proof of even one incident can raise safety concerns that shape the outcome (paras 141–147).

What if things change after the trial — can I appeal with the new information?

Usually not. New facts generally cannot be added on appeal if you could have obtained the evidence for trial, and post-trial changes are normally addressed by a variation application, where you must show a material change in circumstances (paras 73–80, 89).

References {#references}

Read the decision itself: Barendregt v Grebliunas, 2022 SCC 22