Barendregt v. Grebliunas

by | Jan 3, 2023

In Barendregt v. Grebliunas, the Supreme Court confirms the mobility framework set out in Gordon v. Goertz, (1996) 2 S.C.R. 27, as refined over the past two decades and as codified (largely) in the 2019 amendments to the Divorce Act.

Supreme Court of Canada

May 20 2022, 2022 SCC 22

The Court’s decision in Gordon sets out a two‑stage inquiry for determining whether to vary a parenting order and permit a custodial parent to relocate with the child: first, the party seeking a variation must show a material change in the child’s circumstances; second, the judge must determine what order reflects the child’s best interests in the new circumstances. Although Gordon concerned a variation order, courts have also applied the framework when determining a parenting arrangement at first instance, with appropriate modifications.

Reasons for relocating

Where the Divorce Act departs from Gordon, the changes reflect the collective judicial experience of applying the Gordon factors. While Gordon rejected a legal presumption in favour of either party, the Divorce Act now contains a burden of proof where there is a pre‑existing parenting order, award or agreement (s. 16.93). And although Gordon restricted whether courts could consider a moving party’s reasons for relocating, this is now an express consideration in the best interests of the child analysis (s. 16.92(1)(a)).

Child’s best interest

The language in s. 16(6) now expressly recognizes that the so‑called maximum contact principle is only significant to the extent that it is in the child’s best interests. This principle is better referred to as the parenting time factor, and must not be used to detract from the child‑centric nature of the inquiry. Section 16.92(2) provides that trial judges shall not consider a parent’s testimony that they would move with or without the child, and ss. 16(3)(j) and 16(4) instruct courts to consider any form of family violence and its impact on the perpetrator’s ability to care for the child. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child. This consideration is especially important in mobility cases.


In light of these refinements, the common law relocation framework can be restated as follows:
courts must determine 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, and the scope of appellate review is narrow.
A court shall consider all factors related to the circumstances of the child, which may include:

  • the child’s views and preferences,
  • the history of caregiving,
  • any incidents of family violence, or
  • a child’s cultural, linguistic, religious and spiritual upbringing and heritage.

A court shall also consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, and give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child. How the outcome of an application would affect either parties’ relocation plans should not be considered.


Read more about child relocation and child abduction in Canada – Ontario or Canada – Québec

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