Relocation, Indeterminacy, and Burden of Proof: Lessons from Canada

23 Pages Posted: 16 Sep 2011 Last revised: 5 Oct 2011

See all articles by Susan B. Boyd

Susan B. Boyd

University of British Columbia Allard School of Law

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Abstract

This article traces the history of relocation law in Canada and assesses the merits of law reform proposals on relocation in one Canadian province, British Columbia. These law reforms would introduce burdens of proof for relocation applications, marking a departure from the Canadian trend. Based on the key Supreme Court of Canada decision on relocation, Gordon v Goertz (1996), this trend has been to reject presumptions of any kind in custody decision-making. Relocation decisions have thus been left to the discretion of individual judges, using the indeterminate best interests of the child test. Burdens of proof have, however, been at play at earlier points in Canadian law. In addition, studies indicate that the rejection of presumptions in favour of a general best interests test has had mixed results at best. The article uses these studies to raise questions about calls in recent scholarly literature for a ‘neutral child-centric’ approach and considers the impact of a normative climate favouring shared parenting and maximum contact on interpretations of children’s best interests in the relocation context. The author recommends that greater attention be paid to the realities of a child’s life, including the care relationships surrounding the child.

Keywords: Relocation, indeterminancy, burden of proof

Suggested Citation

Boyd, Susan Barbara, Relocation, Indeterminacy, and Burden of Proof: Lessons from Canada. Child and Family Law Quarterly, Vol. 23, No. 2, pp. 155-177, 2011, Available at SSRN: https://ssrn.com/abstract=1927993

Susan Barbara Boyd (Contact Author)

University of British Columbia Allard School of Law ( email )

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604-822-8108 (Fax)

HOME PAGE: http://www.allard.ubc.ca/faculty-staff/susan-b-boyd-frsc

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