In the aftermath of a complex divorce, the desire for stability is often at odds with the fluid reality of life. For parents managing significant professional commitments and personal transitions, the conclusion of a trial represents more than just a legal endpoint; it represents a blueprint for their future and the future of their children. However, what happens when that blueprint no longer fits? Whether due to a career opportunity in a different province or a shift in the family dynamic, the legal system must balance the need for “finality”—the idea that a court’s decision should be lasting—with the necessity of “variation” when circumstances truly change.

This comprehensive guide explores the delicate tension between finality and variation. We will examine the foundational principles established by the Supreme Court of Canada, specifically through the lens of two landmark decisions: Gordon v. Goertz and the more recent Barendregt v. Grebliunas. For litigants, understanding these principles is the difference between achieving a stable resolution and becoming entangled in endless, costly cycles of re-litigation. In a world where personal and professional lives are increasingly mobile, the law must find a way to honour the past decisions of judges while remaining sensitive to the evolving needs of the modern family.

The Doctrine of Finality: Why Courts Hesitate to Reopen Files

Finality is a cornerstone of the Canadian judicial system. In family law, it serves a dual purpose: it provides children with a predictable environment and prevents the emotional and financial depletion of the parties. Without a strict rule on finality, litigation could become a perpetual cycle of motions and cross-motions, leaving families in a state of constant transition.

The concept of “res judicata”—that a matter has been judged and cannot be re-litigated—applies in family law, albeit with a necessary degree of flexibility. Because children grow and circumstances shift, the law allows for a variation. However, this is intended to be an exception, not the rule. When a judge delivers a final order regarding parenting or relocation, that order is intended to be the “last word” based on the evidence presented. It is not a draft. Consequently, the law imposes a high bar for anyone seeking to alter these arrangements.

The court recognizes that the “best interests of the child” is a paramount consideration, but it also recognizes that the child’s best interest is often served by having a final, enforceable plan. Constant litigation creates toxic stress for children and parents alike. Therefore, the law demands that if you want to reopen a final order, you must prove that something fundamental has changed—something that goes beyond the normal fluctuations of life.

Varying a Final Order: The “Material Change” Threshold

To vary a final parenting order, the applicant must demonstrate a “material change in circumstances”. This threshold is the first and most significant hurdle. It is not merely any change, but one that satisfies specific criteria established in the landmark case of Gordon v. Goertz.

In Gordon v. Goertz, the Supreme Court of Canada laid out a two-step process for variations. First, the applicant must show a material change. Second, if—and only if—the threshold is met, the court will embark on a fresh “best interests of the child” analysis. The court defined a material change as one that:

1. Results in a change in the condition, means, needs, or circumstances of the child or the person who has custody of the child;
2. Materially affects the child; and
3. Was not foreseen or could not have been reasonably contemplated at the time the initial order was made.

This gatekeeping mechanism is vital. It prevents parents from returning to court every time a child starts a new hobby or a parent gets a modest raise. The change must be significant enough that, had it been known at the time of the original order, the result would likely have been different. For litigants, this means that every piece of evidence presented at trial must be forward-looking. If a potential move or a career change was discussed during trial, it was “contemplated”, and therefore may not qualify as a material change later.

A “material change” might include a parent’s sudden and permanent disability, a significant change in the child’s health needs, or a move by one parent that was genuinely unexpected at the time of the trial. Crucially, the move itself must “materially affect” the child. If a move is only a few blocks away, it is unlikely to meet the Gordon v. Goertz threshold.

Barendregt v. Grebliunas: A Modern Landmark on Relocation and Evidence

In 2022, more than 10 years later, the Supreme Court of Canada revisited these themes in the significant decision of Barendregt v. Grebliunas. This case has become the modern touchstone for relocation disputes. It involved a mother’s desire to relocate with two young children from Kelowna to Telkwa, British Columbia—a distance of approximately 1,000 kilometres.

At the initial trial, the judge granted the relocation. The judge found that the mother had been the primary caregiver and that her move to Telkwa—where she had family support and a better housing situation—was in the children’s best interests. However, the father appealed. During the appeal, the father sought to introduce evidence that his financial situation had improved and he was now able to provide a more stable home environment through home renovations. Based on this new evidence, the BC Court of Appeal reversed the relocation order. The case eventually reached the Supreme Court of Canada, which corrected the course of relocation law and reaffirmed the strict rules surrounding evidence on appeal.

The Fresh Evidence Rule: Preventing a “Second Try” at Appeal

One of the most critical aspects of Barendregt v. Grebliunas is the Court’s warning against using the appeal process to circumvent the finality of trial. The father in this case sought to introduce evidence that his financial circumstances had improved since the trial, arguing this should change the outcome. However, the Supreme Court of Canada held that the Court of Appeal erred in admitting this evidence.

The Court reaffirmed the “Palmer test”, which dictates that fresh evidence should only be admitted on appeal if it meets four rigorous criteria:

• Due Diligence: The evidence could not have been obtained by reasonable diligence for use at trial. If the information existed or could have been found with effort, it cannot be “fresh”.
• Credibility: The evidence must be credible and reasonably capable of belief.
• Relevance: The evidence must bear upon a decisive or potentially decisive issue in the trial.
• Decisiveness: The evidence, if believed, could reasonably be expected to have affected the result.

The Court in Barendregt v. Grebliunas made it clear that family law is not “special” in a way that allows parties to bypass these rules. Admitting evidence that could have been presented at trial, or evidence that only arose after the trial, undermines the entire judicial process. It effectively allows a party to treat the appeal as a “second try”. This is an affront to the principle of finality. If a party loses at trial, they cannot simply go out, change their life circumstances, and then present those changes as “evidence” to reverse the judge’s decision.

The Best Interests of the Child: Beyond “Maximum Contact”

Barendregt v. Grebliunas also provided much-needed clarity on the “best interests of the child” framework in relocation cases. Historically, many believed the “maximum contact” principle (that children should spend as much time as possible with both parents) acted as a default barrier to relocation. The Supreme Court clarified that this is not the case.

The Court held that the “maximum contact” principle is only one factor among many. It should not be used as a “thumb on the scale” to prevent a parent from moving. Instead, the court must conduct a holistic analysis. This includes considering the history of caregiving. In Barendregt, the mother had been the primary caregiver. The Court noted that the children’s bond with their primary caregiver is often the most significant factor in their stability and well-being. If a relocation will enhance the primary caregiver’s ability to provide for the children, that benefit may outweigh the reduction in time spent with the other parent.

Navigating the New Requirements for Relocation

For litigants, the procedure for relocation is now strictly governed by the 2021 amendments to the Divorce Act. These rules are designed to prevent surprise moves and to provide a clear pathway for dispute resolution.

The 60-Day Notice Rule

Anyone with parenting time or decision-making responsibility who intends to move must provide 60 days’ written notice. This notice must specify the expected date of the move, the new address, and a proposal for how the new parenting schedule will work. Failure to provide this notice can be viewed by the court as a lack of cooperation and may negatively impact the moving parent’s case.

The Burden of Proof

The law now establishes clear burdens based on the current parenting arrangement. If the parents have a “substantially equal” parenting arrangement, the parent who wants to move has the burden to prove the move is in the child’s best interests. If, however, the child spends the “vast majority” of their time with the parent who wants to move, the burden is on the parent staying behind to prove the move is NOT in the child’s best interests.

The Reason for the Move

While Gordon v. Goertz previously suggested the reason for the move was generally irrelevant, the new Divorce Act (and Barendregt) notes that the court may consider whether the move is made in “good faith”. For example, moving to escape family violence or to secure a significantly better economic future for the family is viewed differently than a move intended solely to frustrate the other parent’s access.

The Comprehensive “Best Interests” Test

Section 16(3) of the Divorce Act now lists specific factors that a court must consider when determining what is in a child’s best interests. These include:

• The child’s needs, given their age and stage of development;
• The nature and strength of the child’s relationship with each parent, as well as with grandparents and other important people in their lives;
• Each parent’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
• The history of care for the child;
• The child’s views and preferences, giving due weight to their maturity;
• The child’s heritage and religion, including Indigenous heritage;
• Any plans for the child’s care;
• The ability and willingness of each person to care for and meet the needs of the child;
• The ability and willingness of each person to communicate and cooperate, in particular with one another, on matters affecting the child;
• Any family violence and its impact on the child and the parent’s ability to care for the child.

The Impact of Delay: A Warning from the Supreme Court

One of the most profound observations in Barendregt v. Grebliunas was about the impact of delay in family law litigation. When a trial judge makes an order, and that order is stayed pending an appeal, the children are often left in a state of “limbo”. In Barendregt, the children had already moved to Telkwa and were then ordered back to Kelowna. The Supreme Court noted that litigation delay is particularly harmful to children because their sense of time is different from that of adults. A year spent in a “temporary” arrangement is a lifetime for a young child. This further reinforces the principle of finality: once a decision is made, it should be respected unless there is an overwhelming reason to change it.

The Critical Role of Family Violence Considerations

A significant theme in Barendregt v. Grebliunas is the court’s sensitivity to family violence. The SCC emphasized that family violence is not just physical; it includes coercive and controlling behaviour. In relocation cases, the court must consider whether a move is necessary to protect a parent or child from such behaviour. A child’s best interests cannot be separated from the safety and mental health of their primary caregiver. If a move allows a parent to be safer and more supported, that benefit often outweighs the reduction in contact with the other parent.

Litigation Strategy: Protecting Your Final Order

For those involved in high-stakes family law disputes, the goal is not just to win, but to win in a way that lasts. This requires a proactive strategy that anticipates the arguments of finality and variation.

Firstly, treat your trial as the only opportunity you will have. The Supreme Court’s decision in Barendregt v. Grebliunas stands as a stark warning: do not count on an appeal to “fix” your case with new information. If you anticipate a change in your finances, your living situation, or your career, you must bring that evidence to the trial judge. Speculative evidence is better than no evidence at all, provided it is grounded in reality.

Secondly, if you are seeking a variation, be meticulous in documenting the “material change”. You must be able to prove that the change was not contemplated at the time of the original order. For example, if you are a parent with significant assets and your business undergoes a restructuring that requires you to relocate to another country, you must show why this restructuring was not predictable during the initial divorce proceedings.

Thirdly, focus on the child’s perspective. Courts are increasingly moving away from “parental rights” and toward “child-centric” outcomes. In Barendregt v. Grebliunas, the court’s decision was rooted in the reality of the children’s lives in Telkwa versus Kelowna. Every argument you make should be framed by how it benefits the child’s emotional, physical, and psychological development.

Frequently Asked Questions for Litigants

Q: Can I move with my child before the court grants an order?

A: Generally, no. This is known as a “provisional” move and is strongly discouraged by the courts. Moving without consent or a court order can be seen as “self-help”, which judges often penalize. Always wait for the 60-day notice period to lapse or for a court order to be issued.

Q: What if the other parent is the one who changed their circumstances after the trial?

A: As seen in Barendregt v. Grebliunas, if the other parent tries to use their new circumstances to appeal a relocation order you won at trial, you can rely on the finality principle. Their “fresh evidence” must meet the strict Palmer test. Most likely, they should be filing a variation application instead of an appeal, but even then, they must prove the change is “material”.

Q: How does the court define “the vast majority of time” for the burden of proof?

A: There is no magic percentage, but generally, if one parent has the child more than 60-70% of the time, the burden will likely shift to the non-moving parent to oppose the relocation. If it is closer to a 50/50 split, the parent wanting to move carries the burden.

The Palmer Test in Detail: Lessons for Trial Preparation

The Palmer test mentioned in Barendregt v. Grebliunas was designed for criminal cases to prevent the state or the accused from constantly reopening trials. In family law, its application is even more vital. Imagine a scenario where a parent loses a relocation trial and then, two weeks later, suddenly finds a higher-paying job or a better school for the child. If the court allowed that parent to appeal based on this “new” information, there would be no incentive to prepare properly for the initial trial. Every litigant would treat the trial as a “test run”.

The “due diligence” branch of the test is the most common pitfall. “Reasonable diligence” means you have explored all likely avenues of evidence. In relocation cases, this includes having a finalized parenting plan, a clear understanding of the local schools in the new location, and a concrete plan for how the other parent will maintain contact. If you lack these at trial, you cannot “find” them later and present them on appeal. This puts a premium on hiring experienced legal counsel early—counsel who can anticipate the types of questions a judge will have and ensure the evidence is gathered well before the trial begins.

Financial Realities and Relocation

While the court focuses on the “best interests of the child”, financial stability is undeniably a factor. In Barendregt, the mother’s ability to secure affordable housing in Telkwa versus the expensive market in Kelowna was a relevant factor. For litigants managing significant family assets, the “economic viability” of the proposed move is a key evidentiary point. This is not about which parent has more money, but about which location provides the child with a higher quality of life, better opportunities, and a parent who is less financially stressed. The court looks at the “net” benefit to the child, taking into account the total environment each parent can provide.

The Majority vs. Dissenting Opinion in Barendregt

It is also worth noting that the Supreme Court was not unanimous. The dissent, led by Justice Côté, argued that the Court of Appeal should have had more discretion to admit the fresh evidence because family law involves children. However, the majority firmly rejected this, stating that the law’s need for certainty and finality is precisely what protects children. The majority’s view is now the law of the land in Canada, signalling a move toward stricter procedural compliance in all areas of family litigation.

Conclusion: Seeking Resolution that Lasts

The path through family litigation is often long and arduous. For parents, the highest priority is ensuring that when the dust settles, their children are in a stable, nurturing environment. The principles of finality and variation exist to protect that stability. By understanding the threshold of “material change” in Gordon v. Goertz and the evidentiary limits set in Barendregt v. Grebliunas, you can navigate your legal journey with greater clarity and purpose.

Success in these matters is rarely about a single “win”—it is about securing a future that respects both the law’s need for finality and the child’s need for a life that can adapt to the future. Whether you are the one seeking to move or the one seeking to maintain the status quo, the focus must remain on the long-term best interests of the child, supported by a rigorous and honest presentation of the facts at the earliest possible stage. In the high-stakes arena of family law, preparation is the only true path to a final, peaceful resolution.

Need Family Law Assistance With Mobility and Relocation, or Variation of a Final Order? Contact Roland Luo in Vancouver

If you are facing a situation that requires immediate legal intervention, do not wait for the problem to linger or to become permanent. Contact the team at Roland Luo to discuss your options in these complex areas of family law in British Columbia.

Located in downtown Vancouver, Roland Luo proudly represents clients throughout British Columbia, as well as clients across Canada and the United States. To schedule a confidential discussion, contact us online (most efficient) or by phone at 604-800-4628.