“Section 2(1) of the Divorce Act defines “relocation” as,
relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with
(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
(b) a person who has contact with the child under a contact order.
Section 16.9(1) of the Divorce Act provides that a person with parenting time or decision-making responsibility respecting a child of the marriage who intends to effect a relocation must provide at least 60 days’ prior notice of that intention, in a prescribed form, to anyone else who has parenting time, decision-making responsibility or contact under a contact order.
Pursuant to s. 16.91(1), a person who has given notice pursuant to s. 16.9 and intends to relocate a child is permitted to do so if: a) the court authorizes the relocation; or b) a recipient of the s. 16.9 notice does not object in the prescribed manner within 30 days of receipt of that notice and there is no order prohibiting the relocation.
In determining whether or not a relocation should be authorized, “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”, which is a highly fact-specific and discretionary inquiry (see: Barendregt v Grebliunas, 2022 SCC 22, at para. 152). The court must consider the best interests of the particular child in the particular circumstances of the case (see: Barendregt, at para. 123).
In determining the best interests of the child in relocation cases, the court must consider all factors related to the child’s circumstances, including, without limitation:
a. the child’s views and preferences;
b. the history of caregiving;
c. any incidents of family violence;
d. the reasons for the relocation;
e. the impact of the relocation on the child;
f. the amount of parenting time spent with the child and the level of the parties’ involvement in the child’s life;
g. the existence of a court order, arbitral award or agreement that specifies the geographic area in which the child is to reside;
h. the reasonableness of the relocating party’s proposal to vary parenting time, decision-making responsibility, taking into consideration, among other things, the location of the new place of residence and the applicable travel expenses; and
i. whether the parties have complied with their respective obligations under statute, a court order, arbitral award or agreement and the likelihood of future compliance,
(see: Barendregt, at paras.153-154).
The court is not to consider how the outcome of the relocation application would affect the parties’ relocation plans – e.g., whether the relocating party would relocate without the child or not relocate at all (see: Barendregt, at paras. 140 and 154).”