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Canadian courts and lawyers routinely misapply relocation law, undermining a mother’s right to move on after separation and reinforcing systemic gender biases.
What is even the law on relocation?
In 2023-2024, the National Association of Women and the Law (NAWL) travelled across Canada to consult lawyers on how the new Divorce Act is working for victims of family violence. As expected, family lawyers had a lot to say on the family violence provisions, on how accusations of so-called “parental alienation” penalize women, and on litigation abuse.
But I was surprised by the conversations we had about relocation. The way family lawyers described its legal framework was inconsistent with NAWL’s interpretation of the provisions, confirmed by the Saskatchewan Court of Appeal in Friesen, a case in which we intervened. I concluded that, due to ambiguities in legislative drafting, many judges and family lawyers do not apply the relocation framework as intended. This matters greatly to a feminist family scholar because over 90% of applications for relocation are made by mothers. Relocation is often crucial for mothers to:
- access economic independence post-divorce by moving to a city with more career opportunities;
- reconnect with family after having moved to the father’s town as the “trailing spouse”; and/or
- escape family violence or its effects, including isolation associated with coercive control.
Failing to understand and apply the relocation framework can therefore contribute to women’s economic precarity, reduced emotional and physical support, and continued family violence against the mother and the child.
The relocation question – and the invisibility of losing a mother
When a parent wants to relocate with their child, the drawbacks of relocation are immediately apparent: the child will have to adapt to a new environment, change schools, make new friends, and, most importantly to many courts, they will often have reduced contacts with the non-relocating parent.
Some of the advantages of the move are also easy to identify. It is well recognized that the caregiver’s situation affects the child, so the child will often benefit from the relocation because their caregiver will have better employment, a stronger support network, or increased physical or psychological safety in family violence cases.
A judge, when deciding whether to authorize the relocation of a child, could be tempted to weigh these two sets of consequences against each other. Finding that the advantages of the mother’s move are smaller than the disadvantages of being separated from the father, the judge would then deny the relocation to protect the child’s relationship with both parents.
This approach is completely wrong. Here’s why.
In comparing the advantages and disadvantages of the move, the deck is stacked against the relocating parent if the most important benefit of the move is ignored—that is, continued contact with the relocating parent.
Importantly, the court is not called to consider whether the parent should relocate; it only has authority over the child. Logic and section 16.92(2) of the Divorce Act (a court may not consider “if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate”) dictates that the court must take a parent’s relocation as a given.
Once we consider that a parent is entitled to move, it becomes apparent that, if a judge says yes to the move, the child will live in a different city than one parent, and if they say no, the child will also live in a different city than one parent. Typically, denying the relocation protects the child’s time with the non-relocating parent, while authorizing the relocation protects the child’s time with the relocating parent. This, of course, radically alters the balance of pros and cons: denying relocation means a significant loss of parenting time with the relocating parent, who is often the primary caregiving mother. If judges consider the drawbacks of relocation (loss of time with the father), but ignore the drawbacks of staying behind (loss of time with the mother), the risk is that a mother’s relocation will rarely, if ever, be authorized, leading to systemic gender bias.
This approach was dominant in family lawyers’ reasoning – even those who primarily defend mothers in family violence cases – and can be found in courts’ reasoning too. In Friesen, the trial judge had made this error of law, which remained mostly undetected until NAWL intervened to make it a central issue in the appeal.
The proper framework for relocation
How can we avoid this common legal error of neglecting to consider the impacts of loss of contact with the mother if relocation is denied? The Court of Appeal agreed with NAWL’s argument that relocation should never be compared with the status quo; rather, the judge must decide if the child should follow the relocating parent to city A, or stay behind with the non-relocating parent in city B. Splitting the difference and ordering shared parenting, which is an arrangement that some judges, contrary to the law, presume to be the best, is simply not allowed. In fact, choosing shared parenting “avoids the difficult decision the application presents”, that is, who should primarily parent the child. The status quo—parenting by both parents in the same city—must be taken off the table to ensure that judges properly consider both the drawbacks and the benefits of a child’s relocation.
As a result, a mother’s relocation can only be denied if full parenting with the father is preferable to full parenting with the mother. This should be a very rare occurrence (as the burden of proof provisions indicate) when the mother has had primary parenting. Rarer still when the father has committed family violence.
According to the Court of Appeal, only after denying the child’s relocation because near-exclusive parenting by the non-relocating parent is superior to near-exclusive parenting by the relocating parent can the judge consider what should happen if the parent’s relocation does not take place. If parenting by the non-relocating parent is preferable to parenting by the relocating parent, and if shared parenting is preferable to that outcome, the judge may make a conditional order stating that:
- the child is to be parented in a shared parenting regime if the parent does not relocate; and
- the child is to be parented by the non-relocating parent if the other parent relocates.
In any case, shared parenting can never be compared to relocation, and cannot be a reason to deny relocation.
The challenge of applying the law
In Friesen, the trial judge failed to answer the relocation question by denying it based on his preference for shared parenting by both parents. Yet the unstated result of denying relocation is full parenting time with the father if the mother relocates – an outcome that was neither asked for by the father nor considered by the trial judge, and so cannot be said to have been found to be in the child’s best interests (especially given the father’s criminal convictions related to family violence and infrequent contact with the child). It is thus puzzling that the Court of Appeal, despite identifying the trial judge’s legal error, chose to confirm the judgement, finding it immaterial. In doing so, the Court of Appeal reproduced the same error as the trial judge, that is, assuming the mother will not relocate without the child and sending the child to a shared parenting arrangement. This reasoning offends section 16.92(2) of the Divorce Act.
While the Court of Appeal correctly explained the approach to relocation cases, it failed to apply its own conclusions and incorrectly maintained the shared parenting decision. This shows how difficult – and perhaps counter-intuitive for jurists who see a mother’s role as that of keeping the family together – it is to properly apply the relocation framework.
Stay vigilant… Or rewrite the law
In relocation cases, the central question is quite plainly: “which parent can better take care of the child?” Somehow courts and lawyers routinely avoid it. It is thus crucial for lawyers – and mothers’ lawyers in particular – to remain vigilant in those cases to ensure the cultural preference for shared parenting does not lead to systemic misapplications of the law penalizing mothers.
Bill C-223, which has passed second reading at the House of Commons, contains important amendments to the Divorce Act’s relocation framework. This includes clarifying existing rules to ensure legal errors are harder to make… or easier to spot on appeal. Such reform is essential to protect women’s and children’s rights and safety in the difficult context of relocation.
Women who relocate offend the norm of forgiveness, self-sacrifice, and shared parenting. Yet women have the right to leave, and when Parliament recognizes it through important provisions that make relocation by the primary caregiver less onerous, courts have a duty to meaningfully apply such provisions.
While the Friesen case is important in stating the principle that in a relocation case, a parent’s relocation cannot be compared to the status quo or to shared parenting, it also illustrates that there is still a long way to go before women have the right to move on—both physically and psychologically—from a violent ex-partner.
A longer version of this argument will be published in the Canadian Journal of Women and the Law
Suzanne Zaccour is a family law scholar and the Director of Legal Affairs for the National Association of Women and the Law.