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Divorce Act (Canada) sections 16.1 + 16.92 — Parenting orders + Relocation factors

TL;DR. Bill C-78 (in force 1 March 2021) substantially restructured Canadian divorce-act parenting orders. Section 16.1 is the new operative parenting-order statute: it allows the court to make orders for parenting time + decision-making responsibility on application of a spouse or a person who is/stands in for a parent (with leave). Subsections (4)-(9) enumerate the contents — allocate parenting time + decision-making + communications provisions + any other appropriate matter, with definite or indefinite duration, family-dispute-resolution direction, relocation authorisation or prohibition, supervision, and prohibition on removal of child from a specified geographic area. Section 16.92 is the 7-paragraph relocation-factors statute: the court must consider additional factors (in addition to section 16) including reasons for relocation, impact, time-with-child by each parent, compliance with section 16.9 notice requirement, existing residence-area orders, reasonableness of proposed parenting-time variation, and compliance history. Subsection 16.92(2) contains the critical anti-coercion rule: in deciding whether to authorise a relocation, the court shall NOT consider whether the relocating-parent would relocate without the child or not relocate if relocation were prohibited.

Source: Justice Canada canonical URL — Crown copyright, Reproduction of Federal Law Order. · Fetched: 2026-06-14 · Editorial commentary licence: CC BY 4.0

Full statutory text (verbatim)

Section 16.1 — Parenting order

16.1(1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Interim order

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

Application by person other than spouse

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

Contents of parenting order

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

© include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

Terms and conditions

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

Family dispute resolution process

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

Relocation

(7) The order may authorize or prohibit the relocation of the child.

Supervision

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

Prohibition on removal of child

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

History: 2019, c. 16, s. 12 (Bill C-78 — in force 1 March 2021).

Section 16.92 — Best interests of child — additional factors to be considered (relocation)

16.92(1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

© the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child's life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

Factor not to be considered

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child's relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

History: 2019, c. 16, s. 12 (Bill C-78 — in force 1 March 2021).

Why ss.16.1 & 16.92 matter for parental-alienation analysis

The Bill C-78 restructuring (in force 1 March 2021) introduced the most substantively PA-aware framework in Canadian federal family law. PA-pattern conduct intersects multiple provisions:

Section 16.1 — Parenting order architecture

  • Subsection (4)(d) "any other matter the court considers appropriate" — operationally important catch-all. PA-context CAOs can include specific anti-disparagement conditions, restrictions on third-party exposure during parenting time, requirements to facilitate communication with the other parent, and any other tailored intervention the court considers necessary to address PA-pattern conduct.

  • Subsection (5) "any terms, conditions and restrictions" — the same toolkit, with explicit statutory authorisation for tailored conditions. This is the Canadian federal analogue to UK CA 1989 s.11(7)(b) conditional CAO architecture.

  • Subsection (6) family dispute resolution process — the court may direct attendance at family dispute resolution (mediation, parenting coordination). PA-aware practice treats this with caution — sustained PA-pattern conduct often does not resolve through mediation and may entrench coercive dynamics; courts should use this provision only where the underlying dynamic is amenable to mediation, not as a routine deferral.

  • Subsection (7) relocation authorisation or prohibition — explicit statutory authority for relocation control. This dovetails with s.16.92 (the factor framework).

  • Subsection (8) supervision — the court may require supervised parenting time or supervised transfer. In PA-context cases supervised handover is sometimes used (especially in early stages) to de-escalate conflict between the parents and to ensure the child experiences a calm transition.

  • Subsection (9) prohibition on removal from a specified geographic area — the canonical Canadian federal anti-abduction provision. PSO-equivalent. Operationally important in cases where one parent has signalled intent to relocate the child unilaterally.

Section 16.92 — Relocation factors (the 7-factor list)

Section 16.92 supplies the substantive factor list specifically applicable to relocation decisions. The 7 paragraphs operate as additional factors on top of the s.16 best-interests-of-the-child factors. The most directly PA-relevant are:

  • (d) compliance with notice requirement under s.16.9 — Canadian relocation regime requires structured notice (60 days under s.16.9). A relocating parent who fails to comply with the notice procedure typically demonstrates inability to operate within the cooperative-parenting framework, which the court can consider as a (d) factor — and which the leading Supreme Court of Canada relocation authority Barendregt v Grebliunas, 2022 SCC 22 (the post-Bill-C-78 controlling authority) treats as a significant factor.

  • (g) compliance history + likelihood of future compliance — directly captures PA-pattern conduct. A relocating parent with a documented history of obstructing the other parent's parenting time, or who has refused to comply with prior court orders, is by statutory direction less likely to be authorised to relocate.

  • © time spent + level of involvement — protects the substantial-involvement parent. A parent with extensive parenting time and high involvement in the child's life is statutorily protected against relocation that would impair their relationship.

  • (f) reasonableness of proposal to vary parenting time — the relocating parent must demonstrate concrete and reasonable proposals for maintaining the other parent's relationship with the child notwithstanding the relocation. PA-context applications often fail at this factor where the relocating parent's proposal is patently inadequate.

Subsection 16.92(2) — anti-coercion rule

Critical PA-context provision: in deciding whether to authorise a relocation, "the court shall NOT consider, if the child's relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate." This eliminates the coercive lever by which a relocating parent might pressure the court to grant relocation by threatening to relocate alone (depriving the child of the relocating parent). The court must assess relocation on its merits as a child-welfare question, not as a contingent question about what the relocating parent will do if denied.

This subsection is one of the most directly anti-coercive provisions in any modern relocation statute globally.

Cross-references within the AntiAlienate Knowledge Base

  • Companion section: Divorce Act s.16 (best interests of the child) — the 11-factor general best-interests list (incl. friendly-parent factor at 16(3)©)
  • Related provincial statute: Ontario Children's Law Reform Act ss.24-39 (substantively parallel post-2021 reform); each province has its own family-law statute applicable to non-divorce custody/contact matters
  • Companion treaty: Hague Convention 1980 articles — Canada is a Contracting State (in force 1 December 1983); s.16.1(9) "prohibition on removal" provides domestic-law analogue to the international Hague framework
  • Supreme Court of Canada relocation authority: Barendregt v Grebliunas, 2022 SCC 22 — the post-Bill-C-78 controlling relocation case
  • Comparable national framework: UK CA 1989 s.8 (prohibited steps + specific issue orders) — UK analogue to s.16.1(9) prohibition on removal
  • Jurisdiction page: Canada

Primary sources

Sources & authoritative references

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