SiLaw Group Family Lawyers logo

Gordon v Goertz ([1996] 2 SCR 27)

Case at a glance
CaseGordon v Goertz
Citation[1996] 2 SCR 27
CourtSupreme Court of Canada
Year1996
TopicParenting & Relocation
Central questionWhat is the test for moving away with a child after separation?

Key takeaways {#takeaways}

  • A parent's planned move can reopen a parenting order: the court then re-decides the child's best interests afresh.
  • Neither parent starts with a legal advantage; the moving parent's views get respect, not automatic deference.
  • Modern statutes — the Divorce Act and BC's Family Law Act — add relocation notice duties and burdens of proof.

Gordon v Goertz at a glance {#summary}

The test has two stages. First, the parent asking to change the parenting order must show a material change in the child's circumstances — a significant move usually qualifies. Second, the judge decides afresh what arrangement is in the child's best interests, weighing the child's relationship with each parent and the disruption each option would cause.

Most parents assume that once a custody order is made, the parent the child lives with can decide where the child lives. Gordon v Goertz tested that assumption. In late 1994, a Saskatoon father learned that his former wife planned to move to Adelaide, Australia, to study orthodontics — and to take their daughter with her. The Supreme Court of Canada used the dispute to set the framework that has governed Canadian relocation cases ever since.

The facts {#facts}

The parents lived in Saskatoon and separated in November 1990. Both had a warm, loving relationship with their daughter. The mother petitioned for divorce and was granted interim custody, with reasonable access to the father (paras 2–3).

At trial in February 1993, the court gave the mother permanent custody and the father generous access. After trial, the father kept spending more time with his daughter than the order required, usually without objection from the mother (para 4).

In the fall of 1994, the father learned the mother intended to move to Adelaide, Australia in January 1995 to study orthodontics. He applied for custody, or alternatively an order stopping the child's move from Saskatoon. The mother cross-applied to vary access so she could take the child to Australia (para 5).

The chambers judge let the mother move with the child, relying heavily on the trial judge's finding that she was the proper person to have custody. He limited the father's access so it could only be exercised in Australia, on one month's notice. The Saskatchewan Court of Appeal upheld that order, and the father appealed to the Supreme Court of Canada (paras 6–7).

The legal issues {#issues}

The Supreme Court framed one issue: did the courts below err in permitting the child to move to Australia with her mother, the custodial parent? (para 8). This was the first time the Court had considered how a custodial parent's move affects custody and access, so the parties and interveners asked it to set out the governing principles for future cases.

Underneath that single question sat three practical ones:

  • When does a proposed move justify reopening an existing custody order?
  • Once reopened, does the parent the child lives with get a legal presumption in their favour?
  • What factors should guide the fresh look at the child's best interests?

What the court decided {#decision}

McLachlin J, writing for the majority, set out a two-stage inquiry under what was then s 17(5) of the Divorce Act (para 9).

Stage one — material change. The applicant must show: (1) a change in the condition, means, needs or circumstances of the child, or in the parents' ability to meet them; (2) that materially affects the child; and (3) that was not foreseen or could not reasonably have been contemplated by the judge who made the order (para 13). A variation application cannot be a disguised appeal of the original order (para 11). A move is always a change, but not always a material one — a move to a neighbouring town might not qualify. Where the child has frequent, meaningful contact with the other parent and the move would seriously curtail it, the threshold is met (para 14).

Stage two — fresh best-interests inquiry. Once the threshold is met, the judge looks at the matter anew. The earlier order's conclusions are no longer decisive (para 17). There is no legal presumption in favour of the parent with custody, although that parent's views deserve great respect and serious consideration (paras 40, 47–48). The parent's reason for moving does not usually matter — it only enters the analysis in the exceptional case where it reflects on their ability to parent (paras 22–23, 49(e)). The "maximum contact" principle is mandatory but not absolute: it yields to the child's best interests (para 24).

The outcome. The chambers judge's reasons fell short of the full, sensitive inquiry required (para 52). But taking all factors into account, the majority still upheld the mother's custody and permitted the move. It found no evidentiary basis for confining the father's access to Australia, so it varied the order to allow access in Canada, with both parents sharing the travel costs equally since both had ample means (paras 53–54). The appeal was allowed in part (para 55).

L'Heureux-Dubé J, concurring in the result for herself and La Forest J, would have gone further: in her view custody includes choosing the child's residence, the custodial parent's decision deserves deference, and the objecting parent should bear the burden of showing the move harms the child. That approach did not command a majority.

Where the law stands now. Gordon v Goertz is still the root of Canadian relocation law, but you no longer apply it on its own. For divorced or divorcing spouses, the Divorce Act now has a dedicated relocation code: ss 16.7–16.94, added by the 2019 amendments (2019, c 16, s 12). It requires 60 days' written notice of a proposed relocation (s 16.9), gives the other parent 30 days to object (s 16.91), adds relocation-specific best-interests factors — including, unlike Gordon, the reasons for the move (s 16.92(1)(a)) — and assigns burdens of proof based on the existing parenting-time arrangement (s 16.93). It also bars the court from asking whether the parent would move without the child (s 16.92(2)). In Barendregt v Grebliunas, 2022 SCC 22, the Supreme Court confirmed that these amendments largely codified how courts had refined Gordon over 25 years, and that where the Act departs from Gordon — such as the burdens in s 16.93 — the Act governs. For unmarried BC parents, the Family Law Act, SBC 2011, c 25, Part 4, Division 6 (ss 65–71) sets its own notice, objection, good-faith and burden rules. See the statute links in References.

What is the test for moving away with a child after separation? {#the-test}

Gordon v Goertz answers in two steps.

Step one: the parent challenging the existing order must show a material change in the child's circumstances. A move that would seriously cut into a meaningful parent-child relationship normally clears this bar (paras 13–14).

Step two: the judge starts over on the merits, with no legal presumption favouring either parent (paras 40, 47–49). The judge weighs the factors listed at para 49 (see the table below) and asks the ultimate question, set out at para 50: what is in the "best interests of the child in all the circumstances, old as well as new".

The importance of the child staying with the parent they are used to living with, in the new location, must be weighed against keeping full contact with the other parent, extended family and community (para 50). There is no shortcut and no presumption; each case turns on its own facts.

Today, this common-law test operates alongside the statutory relocation schemes described above. Under the Divorce Act, the para 49 factors are supplemented by the s 16.92 factors, and s 16.93 allocates the burden of proof by parenting-time pattern. Under the BC Family Law Act, s 69 builds the analysis around good faith and workable arrangements to preserve relationships.

The framework {#numbers}

Stage What must be shown Source
1. Threshold A change in the child's circumstances or the parents' ability to meet the child's needs Gordon, para 13(1)
1. Threshold The change materially affects the child para 13(2)
1. Threshold The change was not foreseen or reasonably contemplated when the order was made para 13(3)
2. Fresh inquiry No presumption for either parent; custodial parent's views get great respect paras 40, 47–48
2. Factor (a) Existing custody arrangement and the child's relationship with the custodial parent para 49(7)(a)
2. Factor (b) Existing access arrangement and the child's relationship with the access parent para 49(7)(b)
2. Factor (c) Desirability of maximizing contact with both parents para 49(7)(c)
2. Factor (d) The views of the child para 49(7)(d)
2. Factor (e) The moving parent's reason for the move — only if it reflects on parenting ability para 49(7)(e)
2. Factor (f) Disruption to the child from a change of custody para 49(7)(f)
2. Factor (g) Disruption to the child from leaving family, school and community para 49(7)(g)
Modern overlay Divorce Act ss 16.92–16.93 factors and burdens; FLA ss 65–71 for BC non-divorce cases statutes below

What this means if you're separating in Surrey {#bc-impact}

Which rulebook applies to you depends on your situation. If you are divorcing or divorced, the Divorce Act relocation sections govern. If you were never married, or you are using BC's provincial scheme, the Family Law Act applies. The two schemes are similar but not identical, so getting the framework right matters before anyone packs a box. Our divorce in BC page explains which statute fits your case.

If you want to move with your child and a parenting order or written agreement is in place, both schemes require 60 days' written notice to the other parent before a relocation (Divorce Act s 16.9; FLA s 66). The other parent then has 30 days to object or apply to the court (Divorce Act s 16.91; FLA s 68). Missing or ignoring these deadlines has real consequences: notice compliance is itself a factor the court weighs (Divorce Act s 16.92(1)(d)), and under the FLA a move may proceed if no objection is filed in time.

If there is no agreement or order in place yet, the FLA deals with changes to a child's residence differently (s 46), and the analysis still centres on the child's best interests under s 37. Putting a separation agreement in place early — one that addresses future moves — can save both parents from litigating under time pressure later.

How much parenting time each of you actually exercises can decide who has to prove what. Under the Divorce Act, if the child spends the vast majority of time with the parent who wants to move, the objecting parent must show the move is not in the child's best interests; with substantially equal time, the moving parent carries the burden (s 16.93). The FLA works similarly through s 69(4) and (5), and adds a good-faith requirement plus a duty to propose reasonable, workable arrangements to preserve the child's other relationships.

A move also changes the practical side of parenting: travel costs, schedules and often child support arrangements. Many families resolve relocation disputes without a trial — family mediation is often faster and less damaging to the co-parenting relationship than a court application. You can read how other leading cases shape BC family law on our case studies page.

How a lawyer uses Gordon v Goertz {#in-practice}

For the parent who wants to move, a lawyer builds the file around the second stage: evidence of the child's life with that parent, a concrete plan for the new home, school and community, and — critically under today's statutes — a realistic proposal for preserving the child's relationship with the other parent. Under the FLA, the lawyer frames the move as made in good faith under s 69(6), documenting the reasons and the expected benefits to the child's quality of life.

For the parent opposing a move, the focus is the relationship the child stands to lose: the actual pattern of parenting time, involvement in school and activities, and the role of extended family. Because the burden of proof can turn on whether parenting time is "substantially equal" or the "vast majority" with one parent, the documented parenting schedule often becomes the first battleground.

Gordon itself still does day-to-day work. Its threshold test at para 13 governs whether an order can be reopened at all. Its warning that a variation application is not an appeal of the original order (para 11) is used to screen out relitigation. And its factor list at para 49 remains the backbone judges reach for, now read together with the statutory factors. Barendregt confirms that trial-level relocation decisions attract deference on appeal, which is why lawyers press to get the evidence right the first time.

Frequently asked questions {#faq}

Do I need the other parent's permission to move with my child?

Not their permission, but usually their notice. If a parenting order or agreement exists, both the Divorce Act and BC's Family Law Act require 60 days' written notice of a proposed relocation. If the other parent objects in time, a court decides based on the child's best interests. Moving first and litigating later can seriously hurt your case.

Will the court ask whether I'd stay behind if my child can't move?

No. Both the Divorce Act (s 16.92(2)) and the FLA (s 69(7)) prohibit the court from considering whether you would move without the child. This removes the "double bind" that used to pressure parents into answering an impossible question either way.

Does the parent the child lives with automatically get to decide where the child lives?

No. Gordon v Goertz rejected any legal presumption in favour of the custodial parent, while saying their views deserve great respect. Today, the statutes go further and assign a burden of proof based on the actual parenting-time arrangement — but the deciding question is always the child's best interests, not either parent's rights.

References {#references}

All sources accessed 6 Aug 2026.

Read the decision itself: Gordon v Goertz, [1996] 2 SCR 27