“In cases where the s. 16.93(2) burden applies, the presumption is that relocation is in the child’s best interests. The fundamental premise is that where the parent who is the predominant primary caregiver of the child proposes to relocate, it is usually in the child’s best interests to relocate with that parent since this will maintain continuity of care and stability in the child’s life: see D.A. Rollie Thompson, “Legislating About Relocating Bill C-78, N.S. and B.C.”, (2019) 38 Can. Fam. L.Q. 219, at pp. 241-42. This is the logic that justifies requiring the non-relocating parent to rebut the presumption in favour of relocation by showing that the relocation is not in the child’s best interests and should not be permitted.
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We acknowledge, as the trial judge did, that the crucial question in relocation cases remains whether relocation is in the best interests of the child. We also recognize that the inquiry is highly fact specific and discretionary: Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 152. However, in circumstances where s. 16.93(2) applies, the presumption is that relocation is in the best interests of the child, subject to the non-relocating parent establishing otherwise. The failure to properly apply that presumption, as occurred here, is an error of law: Shipton v. Shipton, 2024 ONCA 624, 5 R.F.L. (9th) 17, at paras. 70-74. But for this legal error, the trial judge could have reached a different conclusion regarding Mr. Angelillo’s relocation request, which requires this court to set it aside.”