Supreme Court of Canada establishes primary caregiver presumption when determining whether it is in a child’s best interests to allow a parent to relocate with the child, away from the other parent. - Barendregt v. Grebliunas, 2022 SCC 22 (CanLII)

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Supreme Court of Canada establishes a primary caregiver presumption when determining whether it is in a child’s best interests to allow a parent to relocate with the child

In this appeal, the Supreme Court of Canada revisited the legal framework for determining whether it is in a child’s best interests to allow a parent to relocate with the child, away from the other parent. It concerned the application of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 [Gordon], as refined by the case law over the past two decades and viewed in light of the recent amendments of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

Gordon created the “great respect” doctrine, entitling a court to pay special respect to the custodial parent’s decision to move.  The parent who cared for the child on a daily basis is in a unique position to assess what is in their best interests (Gordon, at para. 48).

However, Karakatsanis J., writing for the majority, noted that over time, a pattern emerged where a move was more likely to be approved where the clear primary caregiver for a child sought to relocate and was more likely to be denied if there was a shared parenting arrangement (para. 121).

Additionally, since Gordon was decided, Parliament enacted a burden of proof, set out in s. 16.93 of the Divorce Act, which corresponds to the broad trends in the jurisprudence (para. 122).

The Supreme Court clarified that in light of these statutory changes, in all cases, the history of caregiving will be relevant. And while it may not be useful to label the attention courts pay to the views of the parent as a separate “great respect” principle, the history of caregiving will sometimes warrant a burden of proof in favour of one parent. Indeed, federal and provincial legislatures have increasingly enacted presumptions, bringing clarity to the law. In all cases, however, the inquiry remains an individual one. The judge must consider the best interests of the particular child in the particular circumstances of the case. Other considerations may demonstrate that relocation is in the child’s best interests, even if the parties have historically co-parented (para. 123).