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Family - Child - Best Interests (2). Kim v. McIntosh
In Kim v. McIntosh (Ont CA, 2025) the Ontario Court of Appeal considered the test for variation regarding 'best interests of the child':[10] The high threshold before the best interests of the child analysis can be conducted afresh serves to provide finality to parents and a measure of stability to children: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 64, per L’Heureux-Dubé J. (dissenting). In N.L. v. R.R.M., 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, this court summarized the test from Gordon as having three components:1) a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs;
2) the change must materially affect the child; and
3) the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. . Gillespie v. Gillespie [best interests of child - Divorce Act s.16]
In Gillespie v. Gillespie (Div Ct, 2025) the Divisional Court considers the situation where a party with parenting rights wishes to relocate their residence:Return of A Child Is Not a Remedy for a Failure to Comply
[38] Appellant’s counsel posits that the best interests of the child factors set out at s. 16.92(1) of the Divorce Act are not applicable to a court’s analysis if the relocating parent has failed to obtain authorization for the move. He then advances his position with a view that a moving parent’s failure to obtain authorization can only be remedied by the immediate return of the child irrespective of any consideration of the child’s best interests.
[39] The 2021 amendments to the Divorce Act introduced provisions that require a parent who has parenting time or decision-making responsibility in respect of a child, and who intends to undertake a relocation of that child to notify, at least 60 days in advance, any other person who has parenting time, decision making or contact. The purposes of this provision are to discourage self-help, to create an orderly process, to encourage negotiation and to allow a parent to relocate without court approval in cases in which there is no objection.
[40] The Supreme Court of Canada in Barendregt v Grebiunas, 2022 SCC 22, 469 D.L.R. (4th) confirmed that the amendments to the Divorce Act import the foundational principles for relocations cases from the tests set out in Gordon v Goertz. A relocation at first instance will differ in approach from a variation application, but the crucial question remains: “is the relocation in the best interests of the child, having regard to the child's physical, emotional and psychological safety, security and well-being?”
[41] The inquiry is highly fact-specific and discretionary: see Barendregt, at paras. 115, 152. In no manner can the Divorce Act be read to require the return of a child as a remedy for the failure to give 60 days’ notice of a move, irrespective of a child’s best interests. Pursuant to s. 16.96(3), a court may modify the requirements for notice, or order that they do not apply, if the court is of the opinion that it is appropriate to do so, such as when there is a risk of family violence. As set out in S.T. v. A.T., 2023 BCSC 875, at para 129, citing K.P. v S.K., 2021 BCSC 1426, at para. 126: “non-compliance by a relocating parent within the Divorce Act relocation provisions may not in itself be necessarily dispositive against the request for relocation, if the relocation is otherwise in the best interests of the child.”
[42] At the same time, a unilateral move without notice is an important factor for the court to consider at Trial, and when setting the temporary parenting plan prior to Trial, because a parent who moves without notice may be a parent who holds a disregard of the law and/or a child’s need for predictability and stability.
[43] Here, the mother served a Notice of Relocation on December 21, 2023 after retaining counsel. The father formally opposed the relocation and the issue of K.’s primary residence will be determined at trial. In the interim, the Motions Judge did not err in law when she found that it was not in K.’s best interests to be removed from his primary caregiver pending a final determination. Neither was it an error in law for her to give effect to K.’s best interests by ordering a stepped-up parenting schedule for which the mother bore responsibility for transportation.
[44] Section 16 of the Divorce Act requires the Court to consider at all times, all factors related to the circumstances of the child, which may include the child's views and preferences, the history of caregiving, any incidents of family violence, or a child's cultural, linguistic, religious, and spiritual upbringing and heritage. A court must also consider each parent's willingness to support the development and maintenance of the child's relationship with the other parent and shall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child.
[45] The Motions Judge engaged with these complex and discretionary factors as set out in s. 16 of the Divorce Act and gave well supported reasons for her child-focussed decision.
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