In Gordon v Goertz ( 2 SCR 27) ("Gordon"), the Supreme Court of Canada drafted a framework for mobility applications. Since Gordon, Canadian courts have applied and refined the Gordon framework. In 2019, the Divorce Act was amended to codify the framework found in Gordon and the subsequent refinements found in Canadian jurisprudence.
The Barendregt v Grebliunas, 2022 SCC 22 ("Barendregt") decision provided the Supreme Court of Canada with an opportunity to clarify the common law framework in accordance with the Divorce Act.
The Supreme Court held that the "crucial question" in mobility applications is "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" (Barendregt at para 152).
A court's inquiry to determine the best interests of the child is "highly fact-specific and discretionary" (Barendregt at para 152). In its analysis, a court shall take into consideration all of the factors that could be related to the circumstances of the child. The Court provided a non-exhaustive list of relevant factors that should be considered:
- the child's views and preferences;
- the history of caregiving;
- any incidents of family violence;
- a child's cultural, linguistic, religious and spiritual upbringing and heritage;
- each parent's willingness to support the development and maintenance of the child's relationship with the other parent; and
- the principle that a child should have as much time with each parent, as is consistent with the best interests of the child.
When determining the best interests of the child in mobility cases, a court should also consider:
- 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;
- the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
- the reasonableness of the proposal of the person 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 application 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 (Barendregt at para 154).
The Supreme Court of Canada clearly indicated that effect of the outcome of an application on either party's relocation plans should not be considered in determining the best interests of the child.
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