“The recent amendments to the Divorce Act set out the factors to be considered in determining the best interests of the child when making a parenting order and additional factors to be considered when a parent is seeking authority to relocate (s. 16(3) and s. 16.92). This framework of analysis, as codified, replaces the common law test set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52. The legislation appears to now set out a complete guide for the court to follow when faced with these very challenging applications.
The framework fails however, to state whether there must first be a change in circumstances before the provisions of s. 16.9 and s. 16.92 of the Divorce Act are to be considered. A change in circumstances was established as the threshold question by the Supreme Court of Canada in Gordon v. Goertz. Without a change in circumstances, the application for relocation would not be considered.
Section 17(5) of the Divorce Act provides that “before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order” and further, the court is required to take into consideration only the best interests of the child as determined by reference to that change. S. 17(5.2) provides that the relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5).
As relocation contemplates a significant geographic move away from the other parent, it will inevitably necessitate a variation to any existing order. Therefore, the provisions of s. 16.9, s. 17(5) and s. 17(5.2) must be read together when considering a variation order to permit the relocation of a child. The parent seeking the order does not need to demonstrate and the court does not need to satisfy itself there has been a change in the circumstances of the child beyond the proposed relocation. This approach was also taken by Trousdale J. in Cote v. Parsons, 2021 ONSC 3719 when considering a recent Motion to Change to allow for the relocation of children.”