The guidelines a court must apply in cases of this kind are set out in Gordon v. Goertz 1996 CanLII 191 (SCC),  2 S.C.R. 27, a so-called “mobility” case like this one, where the issue was where, as to places or a distance from each other, the children will live: 1. All decisions as to custody and access must be made in the best interests of children, assessed from a child-centred perspective. 2. In the absence of explicit restrictions on the incidents of custody, such as the child’s place of residence, it must be assumed that an existing custody order or agreement reflects the best interests of the child and that the appropriate decision-making authority lies with the custodial parent. 3. In determining the best interests of the child, courts must focus on the impact of change of residence on the existing custody order and the appropriate modifications to access as the case may be, and generally not proceed to a de novo appraisal of all the circumstances of the child and the parties. 4. The non-custodial parent bears the onus of showing that the proposed change of residence will be detrimental to the best interests of the child to the extent that custody should be varied or, exceptionally, where there is cogent evidence that the child’s best interests could not in any reasonable way be otherwise accommodated, that the child should remain in the jurisdiction. 5. The proposed change of residence of the child by the custodial parent will not justify a variation in custody unless the non-custodial parent adduces cogent evidence that the child’s relocation with the custodial parent will prejudice the child’s best interests and, further, that the quality of the non-custodial parent’s relationship with the child is of such importance to the child’s best interests that prohibiting the change of residence will not cause comparable or greater detriment to the child than an order to vary custody. 6. Where there is an agreement or court order explicitly restricting the child’s change of residence, the onus should shift to the custodial parent to establish that the decision to relocate is not made in order to undermine the access rights of the non-custodial parent and that he or she is willing to make arrangements with the non-custodial parent to restructure access, when appropriate, in light of the change of residence of the child.
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