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| Suzanne Zaccour |
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| Joanne Moser |
Part 2: How Bill C-223 addresses gendered bias in child relocation cases
On Feb. 10, 2026, one of the deadliest mass shootings in Canada’s history occurred in Tumbler Ridge, B.C., where Jesse Strang killed her mother and half-brother in addition to several students of the local secondary school.
We were surprised to find out that, in 2015, a court had denied Jesse’s mother’s request to relocate with her children from British Columbia to Newfoundland (see Vanrootselaar v. Jacobs, 2015 BCSC 2544). At the time, the children had no relationship with their father, and in denying relocation, the court ordered phone calls between them — not custody. In other words, the court did not deny the children’s relocation because they should be cared for by their father if the mother moved; rather, it denied the mother’s plan to relocate. This is a court telling an adult where to live.
Bill C-223 both clarifies what should already be the state of the law — courts decide where children, not adults, get to live — and corrects its gendered biases.
Courts must grapple with mothers leaving
The bill restates the Divorce Act’s “double bind” provision (subsection 16.92(2)), which prevents courts from asking whether the mother will relocate without the children or not relocate if their relocation is prohibited. According to appellate jurisprudence (see Friesen v. Friesen, 2023 SKCA 60), this provision forces courts to take a mother’s intention to relocate at face value, and not order a parenting arrangement that presumes she stays behind.
However, not all judges or lawyers understand this implication. Therefore, Bill C-223 writes it explicitly: “In deciding whether to authorize a relocation of the child, the court shall presume that the person who intends to relocate the child will relocate regardless of whether the child’s relocation is prohibited.”
In evaluating the best interest factors relevant to relocation (subsection 16.92(2)), courts must therefore consider not only the impact on the child’s relationship with the non-relocating parent if the child relocates, but also “the impact on the child of prohibiting the relocation, in particular in respect of the child’s relationship with the person who intends to relocate the child.” Courts will no longer be able to forget that denying relocation doesn’t mean telling the mother not to move, but rather removing the child from her care.
The burden of proving there is an alternative to relocation
The most important change to relocation in Bill C-223 is restating the burden of proof provisions to establish that the parent opposing the child’s relocation must be able to provide a viable alternative. Under the new 16.93(1), if the non-relocating parent is not the primary caretaker, they must not only show that “the relocation is not in the best interests of the child,” but also that “it is in the best interests of the child to reside primarily” with them.
This is essential because fathers typically oppose mothers’ relocation without providing an alternative. In the Tumbler Ridge and Friesen examples (described in part one), the fathers did not even ask to have primary parenting — they asked for the mother to live where they wanted her to live. It is neither the role of the father nor the court to deny the mother’s relocation. Therefore, for the child’s relocation to be denied, there needs to be another parent who can care for the child in their current city of residence — and that arrangement must be in the child’s best interests.
While this should already be the case under the current law, the bill will clarify once and for all the real question that relocation cases pose — and that courts sometimes avoid — which is: given a situation where parents live in different cities, who should have primary parenting?
Recognizing mothers’ care
Where the bill actually changes the state of the law is in removing some gendered biases against the primary caregiver in the current Divorce Act. The existing burden of proof provisions favour the primary parent, because continuity of care is important for children’s well-being (all else being equal). Yet the Divorce Act recognizes the importance of continuity of care with a primary parent only if that parent has “the vast majority” of parenting time (80 per cent, meaning the primary parent has four times more time with the child).
By contrast, Bill C-223 recognizes primary parenting where the child spends the “majority” of their time with a parent. This is important because mothers who, predominantly, realize the majority of care work for children are denied this recognition by laws and courts that consider a 60-40 or even a 75-25 arrangement not to amount to primary parenting. This is systematic bias devaluating women’s care work.
In a relocation case, one parent is going to have nearly exclusive parenting time. All else being equal, it makes sense to presume that parent will be the one with 75 per cent (or even 60 per cent) of parenting time, rather than the parent with less parenting time. It’s just a presumption, and the burden should be on the non-primary parent to show why they should become the primary parent.
Courts must recognize that giving near exclusive parenting to the parent with 40 or 25 per cent of parenting time is a parenting reversal — which can certainly be done, but is not presumed. A father who cares for the child 25 per cent of the time is certainly not an absent father (and the potential loss of relationship is part of the factors to be considered in authorizing a relocation), but he is not in an equal parenting regime, and saying otherwise is part of the broader social problem of devaluing and making invisible mothers’ care.
Putting the mother on trial
The current legislation only gives the primary parent the benefit of the burden of proof provision if both parties have “substantially complied” with their parenting order or agreement. This incentivizes parties (especially those who engage in litigation abuse) to litigate every deviation from the order of past years. Because life is messy, of course there will be moments where parties have not followed the order to the letter — someone was sick, Christmas was on a Wednesday, COVID happened, the child had a big exam, etc.
The law opens the door not only to put the mother on trial for all of this, but to also litigate whether these breaches are substantial or not. There’s a saying for where mothers have been primary caregivers for all the child’s life and must face the family courts to convince them that they are capable: “The mother has a past, the father has potential.” It serves no interest, and certainly not the child’s, to confuse the relocation question (two parents will live apart, who should care for the child?) with a trial on how precisely parents have been following a past agreement.
We believe the law’s intent is to ensure two things:
- That a parent doesn’t get the benefit of the burden of proof provision if they are the primary parent on paper but not in fact; and
- That a parent doesn’t get the benefit of the burden of proof provision if they blatantly disregarded an order that says otherwise, for example “kidnapping” the child to establish a status quo as the primary parent.
In requiring that the child in fact spent a majority of their time with a parent, and that this arrangement be in accordance with the court’s order or parents’ agreement in order to unlock a favourable presumption, the proposed amendment in Bill C-223 fulfills both objectives without sacrificing the child’s best interests or access to justice to the project of needless debates.
Given the profound impact that relocation decisions have on the safety, stability and well-being of children and their caregivers, it is essential that the legislative framework be clear, coherent and reflective of the realities of post-separation family violence. Yet the current provisions are overly complex, difficult to apply and incentivize unnecessary litigation in ways that systematically disadvantage primary caregiving mothers.
By making modest changes to the relocation framework and clearly restating what courts sometimes fail to grasp about current provisions, Bill C-223 promises fairer outcomes for children whose parents intend to live apart.
This is part two of this series. Part one: Relocation law is stacked against mothers — Bill C-223 can fix it.
Suzanne Zaccour is a member of the Law Society of Ontario and the director of legal affairs for the National Association of Women and the Law, a not-for-profit organization that works to advance women’s rights in Canada through feminist law reform. Zaccour holds a doctorate degree in law from Oxford University. As a researcher, she has published academic papers in the areas of family law, violence against women, criminal law, and gender and language. Her work has been cited by the Supreme Court of Canada.
Joanne Moser is a family law lawyer in Regina. She has been practising primarily in the area of family law since 1994, conducting cases at all levels of court in Saskatchewan and at the Supreme Court of Canada. She is a recognized expert in the area of family law in Saskatchewan, having been engaged as an expert or presenter for a variety of institutions, including the Law Society of Saskatchewan, the CBA and the Saskatchewan Trial Lawyers Association (STLA). She is a member of the Law Society of Saskatchewan and the president-elect of the STLA.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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