Supreme Court of Canada Provides a Clear Framework for Relocation Applications
The framework for determining whether a child should relocate together with their custodial parent was originally set out by the Supreme Court in 1996, in Gordon v. Goertz. The framework has been refined over the past 25 years, both in the jurisprudence and in amendments to both the Family Law Act and Divorce Act. Now, in Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court has provided a clear, current approach to family law mobility cases.
The crucial question, as in other family law cases involving children, is whether relocation is in the best interests of the child. Indeed, the Supreme Court noted that in many cases, this may be the only issue. Determining the issue requires the court to consider at least five factors, as follows:
- The history of caregiving: whether there is a primary caregiver, or a shared parenting arrangement, may be relevant in determining the best interests of the child. The history of caregiving may also result in one parent bearing the burden of proof; for example, in a shared parenting arrangement, the parent seeking to relocate may bear the burden of proof. In contrast, where the moving parent has a vast majority of parenting time, the other parent bears the burden of proving that relocation is not in the child’s best interest.
- Reasons for the move: the moving parent’s reasons for relocation are now only to be considered if relevant to the child’s best interests. For example, relocation for financial reasons may be relevant as it will have an impact on the child’s welfare. However, the moving parent is no longer required to prove that the move is justified, and the absence of a compelling reason for relocation is not sufficient reason to deny an application, unless it negatively impacts the moving parent’s ability to care for the child.
- The parenting time factor: the desirability of maximizing contact between the child and both parents is only relevant to the extent it affects the best interests of the child. There is no presumption in favour of shared parenting arrangements, equal parenting time, or regular access.
- Whether the parent would move without the child: this factor is no longer to be considered. “in all cases, the court should not consider how the outcome of an application would affect the parties’ relocation plans.” (at para. 140)
- Family violence: this is not only a relevant but an important factor in family law mobility cases, given that it directly affects children and is relevant to the perpetrator’s parenting abilities. Family violence goes beyond physical abuse; it includes any violent or threatening conduct, such as psychological and financial abuse. In certain cases, the existence of family violence may be the reason for relocation or the reason relocation is granted in view of the grave implications such conduct has on a child’s development.
Other factors may be relevant to consider, such as the impact of relocation on the child, time spent and involvement with the child by each parent, the existence of any order, award or agreement specifying where the child is to live, the reasonableness of the proposal, and whether the parties have complied with their obligations under family law legislation, any order, award or agreement, and the likelihood of future compliance.
Ultimately, the Supreme Court summarized the framework 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.