CANADA Trends and Developments Contributed by: Shannon Beddoe, Annabelle Lim and Susannah Mungall, McCarthy Hansen & Company LLP
parenting plan workability – features prominently. Fifth, courts have resisted bright-line rules privileging parental mobility or geographic stability. Both Gordon and the statutory amendments pre - serve flexibility to tailor outcomes to each case. That flexibility is the framework’s greatest strength and increasingly one of its greatest challenges. As condi - tions change – housing markets, childcare availability, and employment trends – the best interests analysis must integrate dynamic facts without ossifying into presumptions. In 2021, Parliament enacted ss 16.9–16.96 to pro - vide clearer relocation processes and guidance. The provisions standardised notice procedures, required specified content, set objection timelines, and delin - eated burdens of proof based on whether the child spends substantially equal time, or primarily resides, with a parent. The amendments embedded reloca - tion-specific factors in the best interests analysis, including the reasons for the move, its impact on the child, and the reasonableness of proposed post-move parenting time. They also rejected presumptions and emphasised the importance of family violence, the child’s views, and the feasibility of maintaining rela - tionships. Parliament sought predictability, transpar - ency, and early information sharing to reduce conflict and litigation costs, while maintaining a child-centred, fact-specific inquiry acknowledging Canada’s diverse families. The Supreme Court’s decision in Barendregt v Gre- bliunas reaffirmed core principles: the child’s best interests remain paramount; trial judges receive def - erence in weighing evidence; and relocation turns on concrete circumstances, including the practicalities of maintaining relationships. Barendregt also illustrates that the factual matrix can be determinative – housing, financial feasibility, and caregiver supports shaped the analysis while the legal test remained constant. The decision underscores a through-line from Gordon to the present: stable doctrine applied to changing facts. Part II: the assumptions underlying relocation jurisprudence Every legal framework rests on assumptions – often implicit – about how people live, work, form families,
and raise children. Mobility law is no exception. His - torically, several premises informed the day-to-day application of Gordon and its progeny. First, reloca - tion often followed remarriage or repartnering, with household consolidation and support. Second, new employment opportunities would justify moving, while staying put would often be economically viable. Third, moves were generally voluntary quality-of-life deci - sions rather than responses to acute financial con - straint. Fourth, a child’s community connections could be balanced against reasonable travel and shared- time arrangements because housing and travel costs, though significant, were surmountable. Although neither Gordon nor the amended Divorce Act expressly assumes that remaining is financially sus - tainable, much jurisprudence proceeds on that prem - ise. Courts frequently ask whether relocation benefits the child enough to outweigh disruption to established relationships and routines. That framing assumes that remaining is realistic and thus a genuine compara - tor. For many families after separation, especially in urban centres, that assumption no longer reflects lived experience. The comparison is not between a stable status quo and a marginally better life elsewhere; it is a choice between an economically unstable arrange - ment affecting children and a move that may restore stability at the cost of geographic proximity. This dynamic is not unique to family law. Across legal fields, stable tests can strain when underlying facts change rapidly. Negligence doctrine, for example, has adapted to technology that alters what constitutes reasonable care; privacy law has grappled with the internet’s transformation of “public” and “private”. In each, the law’s core organising principles remained constant, but the factual predicates shifted. So too in mobility: the best interests framework is steady, while the economic facts underlying “stability” and “feasibil - ity” have changed. Part III: when staying is no longer an option Separation has always produced financial hardship because two households must be maintained where once there was one. What has changed is the wid - ening gap between post-separation incomes and the costs of maintaining child-centred housing, childcare, and routines in some communities. The cumulative
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