Relocation disputes surge in family law litigation, says Lerners LLP’s Ryan McNeil

In the last five years, disputes in family law have largely mirrored pandemic-related societal trends, says Ryan McNeil, a partner at Lerners LLP in Toronto.

When COVID-19 locked down Ontario, parents were in court arguing over whether their children would attend school in person or remotely. When the vaccine was introduced, parents fought over whether their children would take it.

Throughout the entire ordeal, many Canadians were leaving downtowns for less expensive, more spacious housing further afield because the normalization of remote work eliminated much – and, sometimes, all – of the necessary commuting. Sky-high housing costs are also a persuasive factor in calculating the costs and benefits of joining the exurban exodus.

“Many people are now able to turn to less expensive towns, less expensive provinces, and, in some cases, even less expensive countries to live with while they continue to be employed in Canada,” says McNeil.

In family law, these realities are leading to a rise in relocation cases – also known as mobility cases, he says.

Bringing an application to court to uproot a child and move them to a location with a lower cost and better standard of living could be in that child’s best interests, says McNeil. But it would also be at the expense of limiting or eliminating the relationship with the other partner.

He says the court’s primary consideration when adjudicating a relocation case is the best interests of the child. The factors at play in this analysis include whether there are better educational opportunities for the children in the new location and better employment opportunities for the parent. Another factor is whether the parent who is not moving will be able to exercise parenting time and who will pay for any necessary travel.

In March 2021, new federal Divorce Act amendments came into force, creating a statutory framework for relocation cases.

“They were welcome amendments,” says McNeil.

Before the amendments, family lawyers relied on a Supreme Court of Canada case, Gordon v. Goertz, [1996] 2 S.C.R. 27. He says the decision provided little guidance and left too much discretion for judges, leading to relocation rulings being “all over the map.”

Now, with the 2021 Divorce Act amendments, family lawyers can provide clients with the structure of how a court will assess a relocation application, says McNeil. The parent requesting relocation must give 60 days’ notice. The court will evaluate the reasonableness of the move’s rationale. The parent requesting the relocation must devise a plan by which the child and the non-moving parent will maintain their relationship.

The amendments also provided direction on which party holds the burden of proof to demonstrate that the relocation is in the child's best interests. If the parents have substantially equal parenting time, it is up to the parent who wants to relocate to prove it is in the child’s best interests. But if the child is with the relocating parent for most of the time, the burden of proof lies with the parent opposing relocation. In any other type of case, both parties must show why their position on the proposed relocation is in the child’s best interests.

“We didn't have those codified before,” says McNeil. “And now they're there, and they're helpful.”