“As there is no final order regarding the parenting arrangement, the respondent need not establish a material change in circumstances in her relocation request. A question arose at trial as to the sequence in which the court should address the terms of a parenting order where relocation is in issue. Relying on Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 17 and 49, the respondent submitted the court should first determine which of the parties is the primary caregiver of the child.
In my view, this approach is inconsistent with the significant legislative amendments that now transcend the common law relocation framework established in Gordon. The Supreme Court of Canada considered the new statutory regime and commented that without a pre-existing judicial determination, a parent’s desire to relocate is simply one part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child: Barendregt, at para. 112. The CLRA directs a holistic analysis of the child’s best interests. It would be problematic to first consider which parent is or has been the primary caregiver to the child, particularly when that issue is included as a factor to consider in the relocation analysis at s. 39.4(3)(c). In determining what parenting orders are in K.L.’s best interests, the logically prior issue is where she should primarily reside: Zorab v. Zourob, 2021 ONSC 6552 and Credland v. Cymbalisty, 2022 ONSC 433, at para. 23.”