Law360 Canada (May 4, 2026, 2:49 PM EDT) --

Rollie Thompson

Part 2: Burdens of proof of best interests in relocation, the double-bind issue

Let’s start with the burdens of proof in the 2021 amendments, which I discussed in my October 2025 article (“Bill C-223: Bad ideas on child relocation”). The burdens of proof are intended to give structure to the analysis of the best interests of the child, based upon what we do and don’t know about the impact of relocation upon children.

In general, it will be in the best interests of a child to relocate with a predominant primary caregiving parent who has the “vast majority” of the parenting time, as continuity of care will matter more than continuity of geographic community. At the other end of the parenting spectrum, if parents have “substantially equal” parenting time, it will generally be in the best interests of children not to relocate, as they can have both continuity of community and continuity of care with the non-relocating parent.

In all other relocation cases, we don’t have the empirical or clinical knowledge or the legal experience to apply burdens or presumptions or starting points.

If two parents have a “substantially equal” shared parenting arrangement, i.e., each parent has roughly 40 per cent of the parenting time, the current s. 16.93(1) puts the burden of proof that the relocation is in the best interests of the child upon the parent proposing to relocate. Only 21 per cent of relocations have been allowed in these “substantially equal” cases since the 2021 changes.

Bill C-223 would abolish this burden in “substantially equal” parenting cases. Why? Because a mother with 50 per cent-plus-1 parenting time should be allowed to relocate the children, even in a shared parenting situation, say Suzanne Zaccour and Joanne Moser. Anything else would devalue women’s care work.

The 2021 laws also create another burden of proof in s. 16.93(2): where a relocating parent has the “vast majority” of the parenting time, i.e. roughly 80 per cent, the burden of proving the child’s best interests militate against the relocation falls upon the opposing parent. In my October 2025 article, I pointed out that, if a parent meets that threshold, relocation of the children has been allowed in 86 per cent of the cases.

Zaccour and Moser stand that on its head, by saying that “courts are still denying relocations in 14 per cent of the cases.” A careful reading of the 14 per cent “no” decisions reveals mostly parents with very poorly planned moves plus some unusual fact situations. Implicit in the authors’ statement is that they expect every mother with the “vast majority” of parenting time to be allowed to move. That would ignore the best interests of individual children.

What does Bill C-223 do? It would create a presumption in favour of relocation for any parent with 50 per cent-plus-1 parenting time, as if it’s generally in a child’s best interests to relocate in all those cases. Zaccour and Moser use the terms “primary parent,” “primary caretaker” and “primary caregiver” interchangeably and inaccurately. The current s. 16.93(2) “vast majority” burden reflects a “predominant primary caregiver,” where we can safely presume that it is generally in the child’s best interest to relocate with the parent. The same is not true for a parent who has a bare majority of parenting time, as Bill C-223 proposes.

Zaccour and Moser implicitly — and sometimes explicitly — do not accept shared parenting. Courts are said to have “a silent preference” for shared parenting, even though that’s grossly overstated. “Substantially equal” shared parenting turns up in only 16 per cent of relocation cases and it is still a minority parenting arrangement. Their bias against shared parenting is reflected in Bill C-223’s allocation of burdens of proof in these cases.

A parent who has “substantially equal” shared parenting, i.e. more than 40 per cent of the parenting time, would have the burden of proving that the relocation is not in the best interests of the child under Bill C-223, a massive shift from the current law. Further, under the 2021 laws, where a parent has 30-35 per cent of the parenting time, both parents need to prove the relocation is in the child’s best interests, without the benefit of any presumptions. But, under Bill C-223, the parent with 30-35 per cent of the time would have to bear the burden of proving the relocation is not in the best interests of the child, also a significant shift. These are not “modest” changes in Bill C-223.

Zaccour and Moser repeatedly, and wrongly, say courts “tell” mothers where to live. But the courts can only legally direct where the children live, not the parents, as even Zaccour and Moser acknowledge. Turns out, they mean that if a court refuses a relocation, mothers (and presumably other parents proposing to relocate) will choose not to relocate without their children. Which is something different than being “told.”

Bill C-223 would also change the “double-bind” section, s. 16.92(2), to say that a court “shall presume that the person who intends to relocate will relocate regardless of whether the child’s relocation is prohibited.” Which means that a relocation court must choose, say the authors, between primary care for the relocating parent versus primary care for the left-behind parent. The current s. 16.92(2) is more agnostic: “The court shall not consider, if the child’s relocation is prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate”.

The real concern here is that a court should not default to the current status quo by refusing the relocation. A secondary concern is to protect the relocating parent from an unfair hypothetical question: “Will you move without your children?” If a court must choose between primary care for the relocating parent versus primary care for the left-behind parent, as the bill proposes, it will not be surprising if many courts opt to say “no” to the move and then change primary care from the relocating mother to the left-behind father. That would hardly be the outcome sought by Zaccour and Moser.

For the “vast majority” and “substantially equal” burdens to be engaged, the parenting time must be in “substantial compliance” with the terms of the order or agreement. Zaccour and Moser claim this puts “the mother on trial,” whether she has complied in detail with the terms of the order or agreement, before she can obtain the benefit of the “vast majority” presumption.

Two excellent Alberta decisions make clear that this requirement is not about occasional problems or denials in parenting time, but whether “the de facto parenting ‘on the ground’ more-or-less squares with the order or agreement,” to quote Justice Michael Marion in T.L. v. R.A.C., 2024 ABKB 366 at para. 60, drawing upon K.D.H. v. B.T.H., 2021 ABQB 548.

Zaccour and Moser seem to start from the assumption that most (all?) mothers should be allowed to relocate with their children. Anything less is a sign that courts are biased, devalue mothers’ care work or are asking themselves the wrong question.

But relocation cases are hard cases. Often they involve two good parents. Children respond differently to relocation. And parenting arrangements and parental roles vary widely. At the ends of the parenting spectrum, whether “vast majority” or “substantially equal,” we can offer starting points for the relocation analysis, whether we call them “burdens” or “presumptions.” But for other cases, it isn’t so easy to ascertain burdens or presumptions or best interests. Pretending it’s simple, like Bill C-223 does, ignores the complexities of real life and the real world of family law practice.

Relocation law is not “stacked against mothers” just because mothers don’t always get to move with their children. Engaging in stereotyped thinking about children, mothers, fathers and parenting arrangements, as do Zaccour and Moser, doesn’t lead to good policy or good legislation. Bill C-223’s proposals on relocation should be rejected.

This is part two of a two-part series. Part one: Bill C-223 won’t ‘fix’ relocation law, it’ll ruin it.

Rollie Thompson, K.C., is professor emeritus at the Schulich School of Law, Dalhousie University, and counsel at Epstein Cole LLP. He has been researching, writing and presenting about relocation since even before Gordon v. Goertz, even before 1996.

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.

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Yvette Trancoso at Yvette.Trancoso-barrett@lexisnexis.ca or call 905-415-5811.