Heading for the Light: International Relocation from Canada

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Relocation, Supreme Court of Canada, Family Law, United States, Move, Gordon v. Goertz


It is an accident of Canadian relocation law that the leading Supreme Court of Canada decision is an "international" case. In Gordon v. Goertz, the mother was allowed to move from Saskatchewan all the way to Australia with her 6-year-old daughter. Most Canadian relocation cases involve moves within provinces or between provinces within the country, not surprising in a country of our geographic size. About 15 to 20 per cent of our reported relocation cases involve relocation outside of Canada: 10 per cent are moves outside of North America, while the other 5 to 10 per cent reflect moves to the United States.

For this article, I decided to separate out these "international" cases from the mass of domestic relocation cases, to take a harder look for any distinctive patterns to be found. I looked at the reported "international" cases from January 2005 to April 2010, listed in the Appendices. I have divided them into two groups: moves outside of North America in Appendix A, and moves to the United States in Appendix B.

Before I look more closely at the "international" case law, I will first set out the "modern" Canadian law of relocation, which starts from the Gordon v. Goertz decision of our Supreme Court of Canada in May 1996. In 2010, Gordon remains "the law". Despite continued unhappiness with much of Gordon, there have been no subsequent legislative changes concerning relocation, either to the federal Divorce Act or to provincial family law statutes.

Under the guise of Gordon, trial decisions have steadily, but silently, shifted away from permitting relocation, with cases approving moves declining from over 60 per cent to 50 per cent over the past ten years. In the second part of the article, I will set out the general trial context within which "international" cases get decided. Our provincial appeal courts have failed to develop any subsidiary or intermediate principles since Gordon, which I will discuss in the third part of the article.

According to the reported cases, an "international" move is more likely to be approved than a "domestic" move. Further, a move outside of North America is more likely to be approved than a move to the United States. To explain these general patterns, I will undertake a more careful analysis of the cases.