New hearing to reweigh father’s request to move with daughter to Montreal
The Ontario Court of Appeal faulted a judge for failing to subject a mother to the burden of proving that the child’s relocation with the father would go against her best interests, given that the child spent most of her time in his care.
In Angelillo v. Mughal, 2025 ONCA 769, the parties married on Sept. 2, 2021, had a child born on Apr. 7, 2022, and separated on July 2, 2022.
Under interim orders, the father maintained primary care of the child, with the mother having supervised parenting time. By the time of trial, the mother’s parenting time had increased to three or four days a week and one overnight.
At trial, the father asked for:
- permission to move with the child to Montreal, with the mother having parenting time on one extended weekend per month
- an affirmation of his sole decision-making authority over the child and the mother’s supervised parenting time
- a restraining order preventing the mother from contacting him or visiting his home
The mother objected to the relocation. Her requested relief included sole decision-making authority, the majority of parenting time, and the removal of the requirement that her parents supervise her parenting time.
On Dec. 31, 2024, Justice Yvonne Fiamengo of the Ontario Superior Court of Justice issued a final order setting a new parenting schedule and resolving the issues arising from the divorce.
Both parties appealed. They alleged that the trial judge ignored or misapplied material evidence concerning their parenting capacities and should have imposed a different parenting schedule.
Relocation request remitted
The Court of Appeal for Ontario allowed the father’s appeal, set aside the trial judge’s denial of his relocation request, and remitted the matter to the Superior Court for an expedited hearing that freshly considers whether moving to Montreal with her father would serve the child’s best interests in the circumstances.
The appeal court denied all other relief requested in the father’s appeal and dismissed the mother’s appeal.
The appeal court acknowledged that the judge appropriately focused on the child’s best interests, the crucial consideration in relocation cases. The appeal court noted that the judge:
- found that the presumption under s. 16.93(2) of the Divorce Act, 1985, applied
- accepted the father’s bona fide reasons for wanting to move
- expressed concerns with the father’s relocation plan, particularly his suggestion for the maternal grandfather to transport the child between Montreal and Toronto once a month
- ordered the father to abandon his plan to move to Montreal and instead remain in the same geographic location
- directed the father to share parenting time under the new parenting schedule
The appeal court criticized the judge’s decision to perform a straightforward “best interests” analysis as if s. 16.93(3) applied and subject both parties to an equal burden of proof to establish whether relocation would serve the child’s best interests.
The appeal court explained that the judge should have started her analysis by applying the s. 16.93(2) presumption. In other words, the judge should have found that relocating with the father would serve the child’s best interests, with the mother having the burden of proving otherwise.
The appeal court thus saw a legal error in the judge’s decision. The appeal court pointed out that the judge could have arrived at another outcome in the father’s relocation request, if not for this error in law.
Next, the appeal court said it was not well-positioned to apply the presumption and rule on whether the father’s relocation request served the child’s best interests.
The appeal court noted that courts should base relocation decisions on the facts at the time and that the present parenting arrangement differed substantially from the one imposed when the father initially requested a relocation.
The appeal court saw no palpable and overriding error in the judge’s parenting order, which took effect 10 months ago, or in her findings on the record.
Lastly, the appeal court denied the mother’s request to vary the judge’s child support order based on updated financial circumstances. The appeal court noted that the order relied on the mother’s prior evidence on her income. The appeal court explained that varying the order would require a motion to change.
