CANADA Trends and Developments Contributed by: Shannon Beddoe, Annabelle Lim and Susannah Mungall, McCarthy Hansen & Company LLP
Economic Reality and Child Relocation: Has the Best Interests Test Kept Pace? Introduction Imagine a separated mother in Toronto. The matrimo - nial home has been sold. She earns CAD95,000 and receives Guideline child support. She has two school- aged children. Comparable rent in her neighbourhood exceeds CAD4,000, and after-school childcare costs CAD1,500 monthly. Her parents live three hours away and offer a suite at half the housing cost and free daily school pick-ups. Twenty-five years ago, this fact pat - tern might have been seen as a parent seeking a bet - ter quality of life. Today, it reads more like an attempt to sustain a life. Canadian mobility law has evolved considerably since Gordon v Goertz , and Parliament has codified a relo - cation framework in the Divorce Act. Yet the most destabilising developments may lie outside the law: sharp increases in housing, childcare, and living costs have altered the factual terrain for best interests deter - minations. This paper argues that although the doctri - nal architecture remains sound – centred on the child’s best interests and context – the assumptions underly - ing its application have shifted. In many contemporary cases, the question is not whether relocation offers a marginally better life, but whether remaining is eco - nomically realistic. The 2021 amendments to the Divorce Act introduced a relocation framework (ss 16.9–16.96), including notice requirements, burdens of proof that vary with parent - ing time arrangements, and codified best interests factors tailored to relocation. The scheme preserves case-by-case assessment and rejects presumptions for or against relocation. These rules are, in design, compatible with principled adjudication. The difficulty lies in implicit assumptions – especially that staying is viable – that may no longer align with economic real - ity. The paper proceeds as follows. Part I canvasses the evolution of the law. Part II surfaces assumptions underlying mobility decisions. Part III situates adjudi - cation in an evidence-based economic context. Part IV distinguishes “economic necessity” from “eco - nomic preference”. Part V explains why economic stability already sits within best interests analysis. Part VI identifies themes in recent jurisprudence. Part VII proposes more explicit recognition of economic
necessity within the existing framework. The conclu - sion suggests the most significant change has been economic, not legal. Part I: the evolution of Canadian relocation law Before Gordon v Goertz , mobility disputes were resolved under the general best interests framework, informed by custody presumptions and deference doctrines that varied across jurisdictions. Courts often gave significant weight to the custodial par - ent’s decision-making autonomy, sometimes treating primary-care stability as a proxy for stable residence. The analysis lacked consistent methodology. Some decisions treated relocation as an incident of custody, while others placed heavier emphasis on maximising contact with both parents. Across these strands, the animating principle remained the child’s welfare, but the route to that end was uneven. In Gordon v Goertz , the Supreme Court of Canada set out a structured approach for variation applica - tions involving mobility. The Court required a mate - rial change in circumstances, then directed judges to conduct a fresh inquiry into the child’s best interests, considering all relevant factors and eschewing pre - sumptions for or against relocation. The views of the custodial parent and the reasons for the proposed move were considered but not treated as determina - tive. The child’s relationship with both parents, the feasibility of maintaining contact, and impact of the relocation on the child’s stability were central. Gor- don thus reframed mobility as an evidence-based best interests analysis, not a rights-based contest or a presumption-laden inquiry. In the decades following Gordon , appellate courts clarified several themes. First, the best interests analysis is fact-sensitive, and appellate intervention is limited when trial judges weigh evidence within the Gordon framework. Second, the child’s need for sta - bility encompasses more than geographic proximity; it includes routines, schooling, caregiving, and the emotional tenor of interparental relationships. Third, the reasons for the move may matter insofar as they bear on the child, including economic and support networks, but relocation cannot undermine the other parent’s relationship or serve as a litigation tactic. Fourth, logistical feasibility – travel costs, time zones,
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