CANADA Law and Practice Contributed by: Shannon Beddoe, Annabelle Lim and Susannah Mungall, McCarthy Hansen & Company LLP
basis. The time a relocation case ultimately takes to get to trial varies across Canada depending on court resources and backlogs. 2.3.10 Primary Caregivers Versus Left-Behind Parents In relocation applications, courts are not automatically more “sympathetic” to an application by a primary caregiver or a left-behind parent. However, Section 16.93 of the Divorce Act does contain onus provisions which create certain presumptions in relocation mat - ters when there is an order, arbitral award, or agree - ment that provides for parenting time, and the parties If the order, arbitral award, or agreement provides that a child spend “substantially equal” time in the care of each party, the party who intends to relocate has the burden of proving the relocation would be in the best interests of the child: “The fundamental premise is that where the parent who is the predominant pri - mary caregiver of the child proposes to relocate, it is usually in the child’s best interests to relocate with that parent since this will maintain continuity of care and stability in the child’s life… This is the logic that justi - fies requiring the non-relocating parent to rebut the presumption in favour of relocation by showing that the relocation is not in the child’s best interests and should not be permitted”. ( Angelillo v Mughal , 2025 ONCA 769 at para 17). Vast Majority Parenting Time have “substantially complied” with it. Substantially Equal Parenting Time On the other hand, if the order, arbitral award, or agreement provides that a child spends the “vast majority” of their time in the care of the party who intends to relocate, the party opposing the relocation has the burden of proving it would not be in the best interests of the child. “Vast majority” has been inter - preted by some courts as approximately 75% of the time or more with one parent. Other Cases In all other cases (ie, when there is no order, arbitral award or agreement dealing with parenting time OR when the parties have not substantially complied with the order, arbitral award or agreement), both parties have the burden of proving whether the relocation is
in the best interests of the child. The court can also disregard the onus provisions if the parenting order is an interim order. Temporary Relocation On a motion for temporary relocation before trial, courts have held that the onus is likely on the parent seeking to relocate on an interim basis. Justice Kraft in Louafi v Schneider , 2025 ONSC 3687 at para 64 noted that: “In my view, when a parent seeks to relocate with the children on an interim basis, that parent must demonstrate why he/she believes a relocation should be permitted before a Trial, since the relocating parent asks the Court to make such a determination without the benefit of a complete record, viva voce evidence or the opportunity for the evidence to be tested”. 2.4 Relocation Within a Jurisdiction In Canada, the Divorce Act distinguishes between a “relocation” and a “change of residence”. A reloca - tion is a type of change in residence that would have a significant impact on the child’s relationship with another person who has parenting time, decision- making responsibility, or contact. Although “change in residence” is not defined in the Divorce Act, a move that does not significantly impair a child’s relation - ship with the other party will generally be considered a change in residence. While a change of residence still requires notice, the requirements are considerably less onerous (see Section 16.8 of the Divorce Act). Whether a move is a relocation or change in resi - dence is a threshold issue. If the parties disagree on the characterisation of the move, a judge will need to determine the issue at the outset of the case, as it will dictate the applicable legal framework and notice requirements. The analysis is not limited to the distance of the move or the associated travel time. Rather, courts tend to focus on the effect of the move on the child’s relation - ship with the other party, the impact on the non-mov - ing parent’s parenting time, and how the commute would affect the quality of the non-relocating parent’s relationship with the child.
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