Child custody and access are often significant issues when parents separate or divorce. Today, this is also referred to as decision-making responsibility and parenting time. It becomes even more complicated when one parent wants to move further away from the other parent with a child they share.
Canadian courts do not automatically favour equal parenting time in every case. Instead, courts focus on the best interests of the child, including the child’s need for stability, safety, and meaningful relationships with the important people in their life. That is why relocation cases can be especially difficult. A move may offer real benefits for one household while also significantly affecting the child’s relationship with the other parent. The legal question is not simply whether a parent wants to move. The question is whether the proposed move is in the child’s best interests.
In general terms, a relocation is a move that makes the existing parenting schedule no longer workable or is likely to have a significant impact on the child’s relationship with another person who has parenting time, decision-making responsibility, or contact under a court order. That can apply when a parent wants to move with the child, but it can also apply when a parent moves away on their own, and the distance makes the current parenting arrangement unworkable. For parents who are already sharing time more evenly, issues like the 40 percent rule for child support may also become part of the broader discussion.
If you are dealing with a parenting dispute after separation, our Toronto child custody and access lawyers can help you understand your options and obligations in Ontario.
Child Relocation in Canada and Ontario
The federal Divorce Act and Ontario’s Children’s Law Reform Act now contain detailed relocation rules. These provisions came into force in 2021 and remain the governing framework in 2026. In Ontario, the changes introduced through the Moving Ontario Family Law Forward Act, 2020 aligned much of provincial parenting law with the updated federal model.
In most cases, the law requires the consent of both parents for a child’s relocation to occur. Section 16.93(1) of the Divorce Act also stipulates that the parent who intends to relocate the child or children has the burden of proving that the relocation will be in the child’s best interests. However, if the child spends most of their time with the relocating parent in compliance with a court order, arbitral award, or agreement, the burden of proof shifts to the objecting parent. They must show that the relocation would not be in the child’s best interests.
Many child relocation laws in Ontario and across Canada are based on the 1996 Supreme Court ruling Gordon v. Goertz, which established the factors that a court must take into consideration to rule for or against an application for relocation.
These principles include:
- No legal presumption that favours the de facto custodial parent;
- The focus is on the best interests of the child and not the wishes of the parent;
- The court considers the existing parenting arrangement;
- It is desirable to maximize contact with both parents;
- The views of the child;
- A custodial parent’s desire to move is only taken into consideration if it is relevant to meeting the needs of the child;
- The disruption to the child’s life by changes in family, community, and school
More recently, the Supreme Court confirmed in Barendregt v. Grebliunas that relocation cases remain highly fact-specific and child-focused, with the child’s physical, emotional, and psychological safety, security, and well-being at the centre of the analysis.
When is a Consent or a Court Order Needed to Relocate With a Child?
If the proposed move is truly a relocation, you generally cannot simply move and sort it out later. Under the current law, the parent proposing the relocation must give proper notice and, if there is an objection or an order preventing the move, the relocation cannot go ahead unless the court authorizes it. Justice Canada’s Notice of Relocation form and Objection to Relocation form explain the basic process under the federal legislation.
The notice period is generally at least 60 days before the proposed move. The other parent, if they have parenting time or decision-making responsibility, generally has 30 days after receiving the notice to object.
A person with only a contact order cannot object to the relocation in the same way, although they may still need to ask the court to vary contact arrangements if the move affects the child’s relationship with them. Where there is family violence or a genuine safety concern, the court has the ability to change or dispense with the usual notice requirements.
What The Court Looks At In A Relocation Case
The court does not arbitrarily decide whether to grant a relocation request. It follows the rules and guidelines set out in the applicable legislation.
The court will always focus on the best interests of the child. Under both the federal and Ontario legislation, the court may consider factors such as:
- The reason for the relocation
- The impact of the relocation on the child
- The history of care
- How much time each parent spends with the child
- Compliance with the notice requirements
- The existence of any court order or agreement limiting where the child may live
- Whether the proposed changes to parenting time are reasonable in light of distance and travel costs
- And possibly more
The court must also avoid deciding the case based on whether the moving parent would relocate without the child if permission is refused.
A parent’s reason for moving may still matter, but only to the extent that it connects back to the child’s welfare. For example, courts may look at whether the move would improve the child’s housing, access to family support, schooling, medical care, or day-to-day stability. They may also consider whether there are concerns about conflict, child protection, coercive behaviour, or family violence that affect the child’s safety and well-being.
Who Has To Prove The Move Is Or Is Not In The Child’s Best Interests?
One of the most important modern features of relocation law is that the burden of proof can shift depending on the existing parenting arrangement.
If the child spends substantially equal time with both parents under an order, agreement, or arbitral award, the parent who wants to relocate usually has the burden of proving that the move is in the child’s best interests. If the child spends the vast majority of time with the parent who wants to relocate, the objecting parent usually has the burden of proving that the move is not in the child’s best interests. In other cases, both sides may effectively have to prove their position.
This is a major reason why it is important to understand exactly what your current parenting plan says and how it operates in practice. Parents who are separated but not yet divorced may need advice about whether to proceed under the Divorce Act, Ontario legislation, or both. If you are still working out the broader terms of your separation, our Toronto divorce lawyers can help you assess the right strategy.
How to Build a Stronger Case for Relocation With a Child
Whether you are asking the court to allow a move or objecting to one, preparation matters. While your original reasons for moving may be important, the court will want to see evidence, not just preference.
Consult a Family Lawyer before Filing a Relocation Request
While there may seem to be little difference between the Divorce Act and the Moving Ontario Family Law Forward Act, it does matter which you decide to file your request under.
A lawyer can help you decide which law applies, whether an urgent motion is needed, whether the notice requirements can be changed for safety reasons, and how your facts are likely to be viewed by the court. If negotiation is realistic, family mediation or another out-of-court process may also help resolve the issue faster and with less conflict.
Prepare a Detailed List of Pros and Cons
Whether you have the burden of proving that relocation is in the child’s best interest or not, it is best to be prepared to answer any challenges to your decision. You might want to consider how the move would affect the following:
- The child’s emotional and physical well-being
- Relationships the child has with significant persons, such as grandparents
- Child safety and security, i.e., moving away from an unsafe neighbourhood
- Access to special educational, medical, or healthcare facilities, such as special schools for children with disabilities
- Standard of living
Gather as Much Evidence as Possible to Support Your Pros and Cons List
Evidence matters. If you say the move will provide better housing, better employment, stronger family support, or improved services for the child, you should be prepared to prove it with documents. That may include a job offer, school information, rental or purchase details, childcare plans, medical records, or evidence showing the child’s existing routine and needs.
Put Together an Action Plan for Parenting
Canadian courts favour parenting plans that involve both parents. You can make a case for relocation if you can present a feasible plan to include the other parent in your child’s life. If the distance is too great to make weekly visits realistic, include regular video conferencing in the schedule. You might also include plans to send the child to spend some holidays with the other parent and significant persons, such as grandparents.
Consult Your Former Spouse about Your Plans
If you are on good terms with the other parent, you might want to involve them in making relocation and parenting time plans. If the court can see that you are working together on relocation, your application may have a better chance of succeeding. However, it is recommended that you confer with a lawyer before approaching a co-parent, especially if the other parent shows signs of objecting to the idea. Your lawyer might veto discussing it with them altogether.
Other Terms to Understand About Child Relocation in Ontario |
|
| Relocation | This is a situation where the move has a significant impact on the child’s relationship with the person who has primary care over the child, or decision-making responsibility, or the person who enjoys a contact order. |
| Change of residence | A change of residence is not always considered a relocation. Some moves still require notice but do not rise to the level of a relocation because they are not likely to have a significant impact on the child’s relationships or parenting schedule. |
| Contact Order | An Order of the Court ordering or granting a person to have communication or contact with a child. |
| Notice of Relocation | If you are planning on relocating with your child, you must complete a Notice of Relocation form and send it to everyone with custody, access, parenting time, or decision-making responsibilities at least 60 days before the scheduled move. |
| Family dispute resolution | The Divorce Act details out-of-court family dispute resolution processes that families can use to solve parenting, child support, and property issues. Among these processes are mediation, negotiation, arbitration, and collaborative law. Ask your lawyer about these processes. |
| Objection to Relocation | Those who receive the Notice of Relocation can object by completing the Objection to Relocation form and sending it to the relocating parent within 30 days of receiving the notice. (Note: A person with a contact order only may not object to relocation) |
| Parenting arrangements | You or a court may make a parenting arrangement for the care of children after a divorce or separation. Parenting arrangements will set out where the children will reside, the person responsible for making major decisions for the child, including school, medical care, etc. |
| Best interests of the child | The new Divorce Act stipulates that a court must consider first the child’s physical, psychological, and emotional security, safety, and well-being. Other factors also come into play, such as special needs given the age or cultural upbringing. |
Get In Touch With the Experienced Family Lawyers at Gelman & Associates
Child relocation after divorce or separation in Canada is a complex process. You cannot relocate with a child without the authorization of the court or the consent of the other parent.
Before making plans to relocate with your child, cover your bases by consulting with our Toronto family lawyers from Gelman and Associates.
Top Choice Awards recognized our firm as Toronto’s Top Family Law Firm for two years running in 2018. With six locations in Toronto and the surrounding areas, you can easily access our offices by transit and off-highway. Contact us online or call us at (844) 736-0200 to book your initial consultation.
