“The Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22, the reasons in which were released on May 20, 2022, set out the framework for determining whether relocation is in the best interests of a child in light of the developments in the case law and legislation since Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, was decided. Karakatsanis J, writing for the majority, provided this summary:
[148] More than two decades ago, this Court set out a framework for relocation applications in Gordon: paras. 49-50. It applies to relocation issues that arise at first instance and in the context of applications to vary existing parenting orders.
[149] Since then, our jurisprudence has refined the Gordon framework, and, subject to two notable exceptions, the Divorce Act has largely codified it. Where the Divorce Act departs from Gordon, the changes reflect the collective judicial experience of applying the Gordon factors. While Gordon rejected a legal presumption in favour of either party, the Divorce Act now contains a burden of proof where there is a pre‑existing parenting order, award or agreement: s. 16.93. And although Gordon restricted whether courts could consider a moving party’s reasons for relocating, this is now an express consideration in the best-interests-of-the-child analysis: s. 16.92(1)(a).
[150] The new Divorce Act amendments also respond to issues identified in the case law over the past few decades, which did not arise in Gordon. Section 16.92(2) now provides that trial judges shall not consider a parent’s testimony that they would move with or without the child. Furthermore, ss. 16(3)(j) and 16(4) of the Divorce Act now instruct courts to consider any form of family violence and its impact on the perpetrator’s ability to care for the child.
[151] In light of the jurisprudential and legislative refinements, the common law relocation framework can be restated as follows.
[152] The crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary.
[153] Our jurisprudence and statutes provide a rich foundation for such an inquiry: see, for example, s. 16 of the Divorce Act. A court shall consider all factors related to the circumstances of the child, which may include the child’s views and preferences, the history of caregiving, any incidents of family violence, or a child’s cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, and shall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child. These examples are illustrative, not exhaustive. While some of these factors were specifically noted under Gordon, they have broad application to the best interests of the child.
[154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interests of the child and any applicable notice requirements, a court should also consider:
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- the reasons for the relocation;
- the impact of the relocation on the child;
- the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
- the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
- the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
- whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
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The court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate. These factors are drawn from s. 16.92(1) and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years.
[155] As I have explained, several pillars underlying the Court’s reasoning in Gordon have shifted over time, leading courts and now legislatures to refine, modify, and supplement the Gordon factors. These refinements leave us with a clear framework going forward.
The Berry v. Berry case, 2011 ONCA 750, is instructive. In it, the court was dealing with a situation wherein the child had been living approximately half of the time with each parent in Toronto since their separation. The issue was whether a relocation with the mother to Kingston after which he would see his father only every second weekend was in the best interest of the child. The court found that “reducing the time the child lives with the father from approximately one half of the time to every second weekend and shuttling the child back and forth between two cities is “highly disruptive” and “did not attach proper weight to the maximum contact principle”: Berry v. Berry at para. 27.
In regard to this, I note that, although the Divorce Act has since been amended, the court is now, as it was then, required to give effect to the principle that a child should have as much contact with each parent as is consistent with the best interest of the child: See also B.V. v. P.V. 2012 ONCA 262.
The legal principles (first set out in Plumley v. Plumley 1999 CanLII 13990 (ON SC), [1999] O.J. 3234 at para. 7) applicable to interim motions regarding mobility are:
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- A court will be more reluctant to upset the status quoon an interim basis and permit the move when there is a genuine issue for trial.
- There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
- Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial. See also Cesare v. Cesare2024 ONSC 34, para. 70
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The importance of maintaining the status quo in interim matters was explained by J. Wright J. in Kimpton v. Kimpton [2002] O.J. 5367 at paras. 1 and 2, as follows:
1) There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment, 1969 CanLII 544 (ON SC), [1969] 2 O.R. 631, (aff’d by Laskin J.A. at 1969 CanLII 438 (ON CA), [1969] 2 O.R. 748), by Laskin J.A. again in Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331 at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster (1992), 1992 CanLII 14032 (NS CA), 38 R.F.L. (3d) 373. By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage. See on this issue Irwin v. Irwin (1986), 1986 CanLII 6303 (ON SC), 3 R.F.L. (3d) 403 and the annotation of J.G. McLeod to Moggey v. Moggey (1990), 1990 CanLII 7339 (SK KB), 28 R.F.L. (3d) 416.
2) Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.
This passage continues to be referred to in the case law. For example, Garduno v. Golec [2024] O.J. 2735, para. 45.
This was explained further by MGJ Quigley J. in Datars v. Graham (2007), 2007 CanLII 34430 (ON SC), 41 RFL (6th) 51 (Ontario SCJ), para.16:
The problem that this court faces on this motion [mobility]…is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions.”