BACKGROUND:
Mr. Diallo (Appellant) and Ms. Bah (Respondent) were married in 2017, and separated in September 2023. Together, the parties have two children, aged eight and three. Following their separation, the children resided primarily with the Respondent mother in Toronto, while the Appellant father relocated to Whitby. In early 2025, the Respondent secured a new job in Winnipeg, which required her to work in-person. Accordingly, she brought a motion seeking interim permission to relocate to Winnipeg with the children.
On February 24, 2025, the motion judge granted the Respondent’s request, permitting the two children to relocate from their habitual residence in Toronto to Winnipeg pending the trial of the mother’s application to relocate with the children. The father appealed, contending that the motion judge (a) misapplied the legal test for temporary relocation, and (b) failed to properly assess the impact that relocation would have on his parental relationship. Ultimately, the Divisional Court dismissed the father’s appeal.
THE LAW
The legal test for relocation is governed by the framework set out in Gordon v Goertz, [1996] 2 S.C.R. 27, and is now largely codified across sections 16 and 16.92 of the Divorce Act. This framework is two-fold:
(1) Material Change in Circumstances: The party seeking to vary an existing parenting order must first demonstrate a material change in the circumstances of the child or the ability of a parent to meet the child’s needs. Specifically, this material change in circumstances must be significant, in that it must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. Additionally, this material change in circumstances must materially affect the child. Finally, this material change in circumstances must either not have been foreseeable or reasonably contemplated by the judge who made the initial order regarding relocation.
(2) Best Interests of the Child: If the threshold for material change in circumstances is met, a Court will then go on to consider whether the relocation is in the best interests of the child. Section 16 of the Divorce Act outlines a myriad of relevant factors to be considered when assessing whether something is in the best interests of the child, including the child’s relationships, stability, needs, views (if applicable), the history of caregiving, cultural and linguistic ties, and the willingness of each parent to support and foster the child’s relationship with the other parent. Section 16.92 specifically addresses relocation, and requires consideration of whether the proposed relocation would enhance the child’s general circumstances, the reason behind the move, and the feasibility of preserving parental relationships post-relocation.
The Supreme Court of Canada in Barendregt v Grebliunas, 2022 SCC 22, reaffirmed that appellate intervention in relocation orders is limited to legal or palpable and overriding factual errors, given the high degree of discretion involved in best interests determinations.
ANALYSIS:
The present appeal focused upon whether the motion judge correctly applied the Divorce Act provisions and Gordon v Goertz material change in circumstances test. The Divisional Court ultimately upheld the motion judge’s application of the law, and dismissed the father’s appeal for several reasons.
To begin, the Divisional Court accepted that the mother’s job offer in Winnipeg, increased salary potential, family support, and access to French-language resources constituted a material change in circumstances. Additionally, the Court deemed that this change was not foreseeable at the time the last court order was made, thereby satisfying the threshold.
Moreover, the Divisional Court accepted that the motion judge properly considered all relevant statutory best interests factors. The motion judge concluded that the relocation would improve the children’s living conditions and access to extended family; enhance their educational and developmental needs, including French-language speech therapy; provide emotional and cultural support in a Francophone and Guinean family environment; and provide the mother greater job stability and mental health supports. As such, the Divisional Court concluded that the motion judge correctly applied the Gordon v Goertz framework.
Regarding the Appellant’s claim that the motion judge did not adequately consider the impact that relocation would have on the father’s relationship with his children, the Divisional Court turned to the detailed provisions made by the motion judge in order to protect the father’s parental relationship. These provisions included:
- Alternate weekend parenting in Winnipeg, with the mother covering the father’s costs for travel and accommodation;
- Video calls with the children, alongside holiday parenting time for the father;
- Summer parenting time for the father in Toronto.
Although the motion judge consistently referenced the 2014 case of Plumley v Plumley in her decision, and used language associated with a review of summary judgment (i.e. “no genuine issue for trial”), the Divisional Court found this did not amount to a reversible error. Instead, the Court clarified that the motion judge’s order permitting the mother’s interim relocation was grounded in a thorough best-interests analysis and a robust evidentiary process.
CONCLUSION:
Ultimately, the Court affirmed the interim relocation order, lifted the stay, and ordered an expedited trial on the final relocation determination. This case affirms that relocation decisions, including those made on an interim basis, must center upon the best interests of the child, even when relocation alters the status quo. A parent’s improved employment, financial security, and extended familial supports can satisfy the material change threshold and justify temporary relocation, especially when thoughtful parenting time accommodations for the other party are included.