Ontario Court of Appeal Clarifies Burden of Proof in Child Relocation Cases: What Family Law Clients Need to Know
Relocation disputes are among the most emotionally and legally complex issues in Ontario family law. A recent Court of Appeal for Ontario (COA) decision provides important guidance for parents involved in mobility, custody, and parenting time disputes under the Divorce Act. The ruling reinforces how courts must apply the burden of proof when the primary caregiver seeks to relocate with a child.
This case is particularly valuable for parents considering a move or opposing one—as well as for family lawyers seeking clarity in relocation law, decision-making responsibility, and parenting time arrangements.
Background: Short Marriage, Young Child, High-Conflict Parenting Dispute
The parties married in 2021, separated in 2022, and share one child, R.A., born in 2022. After separation:
- The father had primary care under interim orders.
- The mother exercised supervised parenting time, which gradually increased leading up to the trial.
- By trial, she had multiple daytime visits and one overnight visit weekly.
At trial, the father sought permission to relocate the child from Toronto to Montréal, maintain sole decision-making authority, and continue supervision requirements. The mother opposed relocation and sought:
- Sole decision-making
- The majority of parenting time
- Removal of supervision
- A restraining order against the father
The trial judge refused relocation, increased the mother’s parenting time, removed supervision (conditional on her living with her parents), and maintained the father’s decision-making authority with a consultation requirement.
Both parties appealed.
Key Legal Issue: Misapplication of the Burden of Proof Under s. 16.93(2)
Under section 16.93(2) of the Divorce Act, when a child spends the vast majority of time with the parent seeking relocation, the other parent carries the burden of proving that relocation is not in the child’s best interests.
This creates a presumption in favour of relocation—a critical legal safeguard for maintaining continuity of care with the primary parent.
The trial judge acknowledged this burden—but failed to apply it.
Instead, she assessed relocation as though both parents carried equal burdens under s. 16.93(3). She defaulted to the status quo, focusing heavily on concerns such as:
- The maternal grandfather’s ability to drive the child monthly from Montréal to Toronto
- Doubts about whether the father truly needed to relocate
The Court of Appeal held this was a legal error. Once the judge accepted that the father was the predominant caregiver, she was required to begin from the presumption that relocation was in the child’s best interests, unless the mother proved otherwise.
Why This Matters: The Presumption Exists for a Reason
The COA emphasized an important principle recognized in relocation jurisprudence:
When the primary caregiver seeks to move, maintaining continuity and stability for the child typically aligns with the child’s best interests.
This does not guarantee relocation will be approved—but it shapes how the evidence must be evaluated and where the burden lies.
Failing to apply this presumption is not a small mistake—it’s an error of law requiring appellate intervention.
Outcome: Relocation Issue Sent Back for a New Hearing
Because nearly a year had passed and the parenting arrangement had changed significantly, the Court of Appeal declined to decide the relocation issue themselves. Instead, they:
- Set aside the trial judge’s relocation ruling
- Returned the relocation issue to the Superior Court
- Requested an expedited hearing
- Upheld all other aspects of the trial judge’s parenting and financial orders
- Denied all new relief sought by both parties
For the mother’s child support arguments, the Court noted that changes require a Motion to Change, not an appeal.
What This Decision Means for Parents and Family Lawyers
- Primary caregivers have a statutory presumption in their favour
If the child spends most of their time with the moving parent, the other parent must prove relocation is not in the child’s best interests.
- Trial judges must not default to the status quo
Courts cannot simply prefer existing arrangements unless the legal presumption has been properly considered.
- Relocation cases are time-sensitive
A relocation decision must be based on the child’s current circumstances, which may change significantly over time.
- Parenting capacity findings remain highly discretionary
The COA granted deference to the trial judge’s findings on parenting time and decision-making, reminding litigants that appeals are not opportunities to reargue evidence.
- Financial issues require the correct legal process
Updating child support requires a Motion to Change, not an appeal.
Why This Case Is Important for Anyone Facing a Mobility Dispute in Ontario
This decision helps clarify how mobility cases should be handled under the amended Divorce Act. For parents and their lawyers, it reinforces the importance of:
- Understanding statutory burdens
- Presenting evidence within the correct legal framework
- Ensuring the court applies the presumption properly
- Acting promptly, as delays can affect outcomes
If you are considering a relocation—or opposing one—this case underscores the need for strong, strategic legal representation by an Ontario family lawyer experienced in relocation cases.
Child Relocation & Support FAQs
Key legal questions about moving with a child and support changes in Ontario.
1. What is the burden of proof in Ontario child relocation cases?
Under s. 16.93(2) of the Divorce Act, if the relocating parent is the primary caregiver, the other parent must prove the move is not in the child’s best interests.
2. Does the primary parent automatically get to relocate with the child?
No. While there is a legal presumption in their favour, the court’s final decision is still based on evaluating the child’s best interests. The other parent has the right to rebut the presumption by showing the move is not best for the child.
3. What happens if a judge applies the wrong legal test in a relocation case?
A misapplied burden of proof (i.e., making the wrong parent prove their case) is considered a legal error. If this happens, the Ontario Court of Appeal may set aside the decision and order a new hearing.
4. Can the Court of Appeal make its own relocation ruling?
Only in limited circumstances. The Court of Appeal’s main job is to find legal errors. If the child’s current situation has changed significantly since the original hearing, the issue is usually referred back to the lower court for a new decision based on the current facts.
5. How do I change a child support order in Ontario?
You must file a Motion to Change with the court. An appeal is not the correct process for updating things like income changes or new support obligations. A Motion to Change is the standard procedure for varying an existing court order.