CANADA Law and Practice Contributed by: Shannon Beddoe, Annabelle Lim and Susannah Mungall, McCarthy Hansen & Company LLP
Section 16.92 (1) – Additional Relocation Factors Additional relocation factors include: • the reasons for the relocation; • the impact of the relocation on the child; • the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; • whether the person who intends to relocate the child complied with any applicable notice require - ment under Section 16.9, provincial family law legislation, an order, arbitral award, or agreement; • the existence of an order, arbitral award, or agree - ment that specifies the geographic area in which the child is to reside; • the reasonableness of the proposal of the per - son who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and • whether each person who has parenting time or decision-making responsibility or a pending appli - cation for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance. While the above factors provide helpful guidance to the courts, they are not intended to be exhaustive, “[n] or are they a checklist to be scored, with the ‘high - est score’ prevailing. Rather, they require a holistic assessment of the child, the child’s needs, and the caregiving and relational context in which the child lives” ( Shah v Romero , 2026 ONCJ 55 at para 128). 2.3.2 Wishes and Feelings of the Child As mentioned in 2.3.1 Factors Determining an Application for Relocation , Section 16 (3)(e) of the Divorce Act specifically considers “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained”. While the wishes and preferences of the child must be considered in relocation cases, their wishes are not determinative, as the court must conduct a holistic assessment of all the relevant factors. In assigning
• each spouse’s willingness to support the develop - ment and maintenance of the child’s relationship with the other spouse; • the history of care of the child; • the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; • the child’s cultural, linguistic, religious and spir - itual upbringing and heritage, including Indigenous upbringing and heritage; • any plans for the child’s care; • the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; • the ability and willingness of each person in respect of whom the order would apply to com - municate and cooperate, in particular with one another, on matters affecting the child; • any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child; and • any family violence and its impact on, among other things, the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and the appropriate - ness of making an order that would require per - sons in respect of whom the order would apply to cooperate on issues affecting the child; this factor requires consideration of: (a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indi - rectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; and (g) any steps taken by the person engaging in the family violence to prevent further family vio - lence from occurring and improve their ability to care for and meet the needs of the child.
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