“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.
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).
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.
In light of the jurisprudential and legislative refinements, the common law relocation framework can be restated as follows.
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.
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.
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:
- 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.
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.”