Relocation cases are among the hardest decisions a family court makes. Geographic distance reduces flexibility, disrupts established routines, and inevitably changes the relationship between a child and the parent left behind, yet the court must decide at a single point in time what will serve the child for years to come. For decades, Canadian courts approached these cases through the framework in Gordon v. Goertz, [1996] 2 S.C.R. 27. Parliament then amended the Divorce Act in 2019 to add a statutory relocation regime, and British Columbia’s Family Law Act has its own. In Barendregt v. Grebliunas, 2022 SCC 22, a case about a proposed move from Kelowna to Telkwa, the Supreme Court of Canada brought the common law into line with the amended Divorce Act and settled several questions that had divided courts.
In this blog, we explain what happened in Barendregt, why the Court refused to consider the father’s new evidence on appeal, the five clarifications it made to the law of relocation, and what the decision means for parents in British Columbia. The notice, objection and burden-of-proof rules that apply before any hearing are covered in our companion post, Can You Move With Your Child in BC? Notice and the Burden of Proof.
A Move From Kelowna to Telkwa Divides Three Levels of Court
The parents met in northern British Columbia in 2011, moved to Kelowna, married, bought a house that needed extensive repairs, and had two boys who were three and five at the time of trial in 2019. The relationship ended in November 2018 after an argument in which, the trial judge found, the father had likely assaulted the mother. That night she drove the children roughly ten hours to her parents’ home in Telkwa. The children were later kept in Kelowna with the father pending the mother’s planned return, which never happened, and she applied to relocate them to Telkwa.
After a nine-day trial, the Supreme Court of British Columbia awarded the mother primary residence and permitted the move. The trial judge relied principally on the parents’ acrimonious relationship, including findings of family violence and the father’s abusive conduct during the trial itself, and found that the mother was more likely to foster a positive relationship between the children and the other parent. A secondary consideration was the father’s uncertain finances and the unfinished state of the Kelowna home.
The father appealed and, as the appeal hearing was ending, sought to introduce new evidence that he had since refinanced the house with his parents’ help and partially completed the renovations. The BC Court of Appeal admitted that evidence, concluding that it displaced one of the two pillars of the trial decision, set aside the relocation order, and directed that the children return to Kelowna. The Supreme Court of Canada allowed the mother’s appeal from the bench in December 2021, with one judge dissenting in part, and restored the trial judge’s order. Its written reasons followed in May 2022.
Why Was the Father’s New Evidence Rejected on Appeal?
Because the evidence could have been obtained for trial with due diligence, and because post-trial developments in a parenting case are ordinarily a matter for a variation application rather than an appeal. The Court held that the long-standing test from Palmer v. The Queen, [1980] 1 S.C.R. 759, governs additional evidence tendered on appeal to review the decision below, whether it concerns events before or after trial. Under that test the evidence must be relevant, credible and capable of affecting the result, and it generally must not have been obtainable for trial with due diligence. The Court of Appeal erred by applying a more permissive test to “new” evidence of post-trial events.
The father’s ability to finance and renovate the house was squarely in issue at trial, and nothing prevented him from securing those commitments beforehand. Allowing him to repair the gaps in his evidence after reading the trial judge’s reasons caused considerable unfairness to the mother. Nor is an appeal a shortcut around the variation process: a parent who says circumstances have changed since trial should ordinarily apply to vary the order and prove a material change, a burden the father was allowed to sidestep. As the majority put it in its opening sentence, “An appeal is not a retrial.”
The Court accepted that a pressing medical or other issue requiring an immediate decision may, in rare cases, excuse a lack of due diligence, but it stressed that the best interests of the child cannot be routinely used to reopen a trial. Finality matters to children too: they should be able to know, with some certainty, where they will live and with whom.
How Did the Supreme Court of Canada Restate the Relocation Test?
The crucial question remains whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being. The Court held that the Divorce Act amendments, in force since March 1, 2021, and provincial statutes such as the Family Law Act had largely codified Gordon as refined by two decades of case law, and it used the appeal to restate the common law framework in the same terms. The factors a court should consider now mirror section 16.92 of the Divorce Act: the reasons for the move, its impact on the child, the time each parent spends with the child, any existing order or agreement about where the child is to live, the reasonableness of the moving parent’s proposal for parenting time given the new location and travel costs, and each parent’s compliance with their obligations. Within that framework the Court made five clarifications.
No Separate “Great Respect” Principle
Gordon had said that a custodial parent’s views were entitled to great respect. The Court held that this label adds little. The history of caregiving is always relevant, and in a shared parenting arrangement both parents’ views deserve careful attention. The Court observed that the burden of proof Parliament enacted in section 16.93 of the Divorce Act corresponds to the pattern that had emerged in the cases, under which a move by a clear primary caregiver is more likely to be approved and a move out of a shared arrangement more likely to be refused; section 69 of the Family Law Act takes a broadly similar approach, though the details differ. The inquiry nonetheless remains individual: a move may be in a child’s best interests even where the parents have historically co-parented.
The Reasons for the Move Are Relevant, Within Limits
Gordon had discouraged courts from examining a parent’s motives for moving. The Court recognized that in practice the reasons for a move often bear on the child’s welfare, as a move for a better job plainly affects a child’s material circumstances, and both the Divorce Act and the Family Law Act now direct courts to consider them. But the court should avoid passing judgment on those reasons. A moving parent need not prove the move is justified, and the absence of a compelling reason does not count against a parent unless it reflects on their ability to meet the child’s needs.
“Maximum Contact” Becomes the Parenting Time Factor
Some courts had treated the “maximum contact principle” as a presumption in favour of shared parenting, equal time or regular access. The Court held that these interpretations overreach. A child should have as much time with each parent as is consistent with the child’s best interests; the principle is better described as the parenting time factor and must not displace the child-centred inquiry.
No Weight on Whether a Parent Would Move Anyway
A court should not consider how the outcome of the application would affect either parent’s plans. Taking into account whether a parent would move without the child can give rise to a double bind: answer yes and appear to put their own interests first, answer no and undermine the case that the move matters. The Court extended that protection to the responding parent as well. Section 16.92(2) of the Divorce Act and section 69(7) of the Family Law Act codify the rule for the moving parent.
Family Violence Is a Significant Factor
Any form of family violence may affect a child’s welfare and must be considered in a relocation decision. Family violence often happens behind closed doors and is difficult to prove, so proof of even a single incident may raise safety concerns and may reinforce other factors, such as the need for limited contact or for support. Courts must consider the impact of the violence on the ability and willingness of the person responsible to care for the child, and the Court cautioned that unnecessarily relitigating such findings on appeal would only deter survivors from coming forward.
Why the Trial Judge’s Decision Was Restored
Applying that framework, the Court found no reviewable error. The trial judge had weighed the very significant loss of contact with the father against the benefits of the move, and he was entitled to treat the mother’s need for emotional and practical support as relevant, because a child’s best interests are furthered by “a well-functioning and happy parent.” His findings about the acrimonious relationship were supported by the record, and the Court of Appeal had no basis to reweigh them. Four factors supported the result: the significant risk that the high-conflict relationship would affect the children in Kelowna; the family support available only in Telkwa; the mother’s greater willingness to facilitate the children’s relationship with the other parent; and the findings of family violence.
What Barendregt Means for Relocation Cases in British Columbia
For parents in BC, Barendregt was decided under the Divorce Act and the common law, but its reasoning maps closely onto the relocation provisions of the Family Law Act and explains the thinking behind several of them. Section 69(6) directs the court to the reasons for the move and whether it is likely to enhance the quality of life of the child and the relocating guardian; Barendregt explains that those reasons matter because of their effect on the child, not as a test of the parent’s motives. Section 69(7) prohibits the court from considering whether a guardian would still relocate if the child’s relocation were not permitted, and Barendregt explains why: the question places a parent in a double bind. Sections 37(2)(g) and (h) and section 38 require the court to weigh family violence and its effect on the responsible parent’s capacity to care for the child; Barendregt confirms that a single proven incident can carry real weight.
The decision also carries a practical warning about timing. The father lost at the Supreme Court of Canada not because his new facts were unimportant but because he could have put them before the trial judge and did not. In a relocation case, the financing letter, the housing plan, the school information and the proposed parenting time schedule need to be in evidence at the hearing, not assembled afterwards, and the same applies to the objecting parent’s evidence of the existing pattern of care. Once a relocation hearing has been decided, the usual route to revisit it is a variation application showing a material change in circumstances, not an appeal built on later events.
Frequently Asked Questions About Barendregt v. Grebliunas
What is the test for relocation after Barendregt v. Grebliunas?
The court must decide whether the relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being. Alongside the usual best-interests factors, it considers the reasons for the move, its impact on the child, the time each parent spends with the child, any existing order or agreement about where the child is to live, the reasonableness of the moving parent’s parenting proposal, and each parent’s compliance with their obligations. It must not consider whether a parent would move without the child.
Can a court consider a parent’s reasons for wanting to move?
Yes, but only to the extent the reasons bear on the child’s best interests. The Supreme Court of Canada held in Barendregt that a moving parent does not have to prove the move is justified, and that the absence of a compelling reason should not count against a parent unless it reflects on their ability to meet the child’s needs. In BC, section 69(6) of the Family Law Act makes the reasons for the move part of the good-faith analysis.
Does family violence affect a relocation application?
Yes. The Supreme Court of Canada described family violence as a significant factor in relocation cases and confirmed that proof of even a single incident may raise safety concerns. The court must consider its impact on the ability and willingness of the person responsible to care for the child, and sections 37(2)(g) and (h) and section 38 of the Family Law Act similarly require BC courts to weigh family violence and its effect on that person’s ability to care for the child.
Can I bring new evidence on appeal if my circumstances have changed since the relocation trial?
Generally not. Barendregt holds that the Palmer test applies to additional evidence tendered on appeal to review the decision below, and evidence that could have been obtained for trial with due diligence will usually be refused. Changes in circumstances after a parenting order are ordinarily addressed through a variation application, in which the applicant must prove a material change in circumstances.
Did Barendregt v. Grebliunas change the law in British Columbia?
It aligned the common law with the amended Divorce Act, in force since March 1, 2021, which the Court said had largely codified the earlier case law, and whose relocation provisions closely resemble those of BC’s Family Law Act. Its practical effect in BC is to explain how those concepts work: reasons for a move matter only through their effect on the child, maximum contact creates no presumption of shared parenting, the court must not consider whether a parent would move without the child, and family violence is a significant factor.
Contact Meridian Law Group for Exceptional Family Law Advice in Vancouver
A relocation hearing is usually won or lost on the evidence assembled in the weeks before it, and Barendregt confirms that there is rarely a second chance on appeal. The family law team at Meridian Law Group acts for both relocating and non-relocating parents, including on urgent and without-notice applications, orders to prevent a child’s removal from British Columbia, and protection orders. Ibrahim Khan has trial experience in parenting and relocation disputes, and Paul Harden, a Principal of the firm, has practised litigation in British Columbia since 2013. Meridian Law Group proudly represents clients in family law matters across B.C., including West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. Contact us online or call (604) 687-2277.
About the author: Paul Harden. Paul Harden is a Principal at Meridian Law Group in Vancouver. He holds a BA in Philosophy from the University of Calgary (2004) and a Juris Doctor from the University of British Columbia (2012), and was called to the British Columbia Bar in 2013. His practice spans estate litigation, business and property disputes, general civil litigation, insurance claims, and serious personal injury. He is a member of the Canadian Bar Association, the Law Society of British Columbia, and the Trial Lawyers Association of BC.
About the author: Ibrahim Khan. Ibrahim Khan is a lawyer at Meridian Law Group in Vancouver whose practice includes family law, civil and commercial litigation, and estate litigation. He holds a Bachelor of Arts in Criminology with a certificate in legal studies from Simon Fraser University (2018) and a Juris Doctor from the University of Saskatchewan (2023). Ibrahim has represented clients before the Provincial Court and the Supreme Court of British Columbia, including at trial in parenting and relocation disputes, and is a member of the Canadian Bar Association and the Law Society of British Columbia.
