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Child Relocation: Everything You Need to Know

Published: October 16, 2021

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Child Relocation: Everything You Need to Know

Child custody and access are often significant issues when parents separate or divorce. It becomes even more complicated when one parent wants to move further away from the other parent with the child.

Canadian courts typically favour a parenting plan where both parents have equal time with a child. However, that can become a problem when the issue of child relocation comes up.

The definition of relocation is a move that makes the parenting time schedule for the child unfeasible. The definition applies to either a parent moving with the child or a parent moving away to a place where the distance makes joint parenting untenable.

The reasons for relocation will significantly impact the court’s decision on whether the move will be in the child’s best interests. Below is an overview of everything you need to know about child relocation and when necessary to apply to the court for a decision.

Child Relocation in Canada

The Divorce Act of Canada sets out the rules for child relocation that specifically requires the consent of both parents. Furthermore, Section 16.93(1) 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 an order, arbitral award, or agreement, the burden of proof shifts to the objecting parent, who must show that the relocation would not be in the child’s best interests.

This is based on a 1996 ruling by the Supreme Court that established the principles regarding child relocation that a court must take into consideration to rule for or against the application. These principles are the following:

  • 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

The Divorce Act of Canada underwent some reforms in late 2020 at around the same time as Bill 207, also known as the Moving Ontario Family Law Forward Act, received royal assent. Bill 207 effectively supersedes the Family Law Act, Children’s Law Reform Act, and Courts of Justice Act on child relocation issues in Ontario. The new Divorce Act and Moving Ontario Family Law Forward Act went into effect on March 21, 2021. Many of the child relocation provisions in these new acts concur.

Steps to Build a Solid Case for Relocation

The Divorce Act and Moving Ontario Family Law Forward Act provide similar procedures and conditions to follow when relocating a child. Under both acts, the relocating parent must request the court’s authorization for the move because it will significantly affect the parenting time schedule. In addition, the other parent must also consent to the move.

Whether you file a request under the Divorce Act and Moving Ontario Family Law Forward Act, you must make sure you have a solid case to bring before the court. Follow these tips on how to do that.

Consult a Family Lawyer beforeFiling a Relocation Request

While there might seem very little difference between the Divorce Act and Moving Ontario Family Law Forward Act regarding relocation, there are legal ramifications when you decide to file under one or the other. A simple reading of the provisions is often not enough to acquire a complete understanding of the issue. To be on the safe side, consult a family lawyer before filing a request.

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 to move or to object to the move. 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, i.e., grandparents
  • Child’s safety and security, i.e., moving away from a bad neighbourhood
  • Access to special educational, medical, or healthcare facilities, i.e., special schools for children with disabilities
  • Standard of living

Gather as Much Evidence as Possible to Support Your Pros and Cons List

If your reasons for relocation include anything that directly affects the health and well-being of the child, you need to support them with facts. For example, if you state that you will get a better-paying job at the new location that will allow you to provide your child with financial stability, provide the court with a copy of your job offer.

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 doable plan to have your child the other parent in your child’s life. If the distance is too great to make weekly visits feasible, 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, you have a good chance of having your request granted. However, confer with your lawyer before you do this step, especially if the other parent shows signs of objecting to the idea. Your lawyer might veto discussing it with them altogether.

How a Court Decides Whether a Child Can Relocate

The court does not arbitrarily decide on whether to grant the child relocation request or not. They follow the rules and guidelines embodied in the appropriate law to make that determination.

Best Interests of the Child Factors

The court will always think of the best interests of the child when deciding to grant the relocation request, and there are several factors to consider. These include:

  • Reason for relocation
  • Impact on the child
  • Parenting time
  • Compliance with notice rules
  • Court order, agreement, or arbitral award restricting relocation
  • Reasonable changes to parenting time
  • Compliance with court orders, agreements, and arbitral rewards

Who Has to Prove Whether the Relocation Is in the Best Interests of the Child

In both the Divorce Act and Moving Ontario Family Law Forward Act, the onus of proving whether the relocation is in the best interests of the child depends on the existing parenting arrangement

  • Equal Parenting Time

If the parenting arrangement has the child spending approximately the same amount of time with both parents, the relocating parent has the burden of proving on the balance of probabilities (more likely than not) that the relocation is in the best interests of the child.

  • Clear Primary Caregiver

However, if both parents comply with a parenting arrangement where the child spends most of their time with the relocating parent, the other parent who objects to the move has to prove that the move is not in the best interests of the child.

Other Terms You Need to Know About Child Relocation
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 This is a move where the person or a child changes residences that is not considered a “relocation”.
Contact Order Is an Order of the Court ordering or granting a person having communication or contact with a child.
Notice of Relocation If you are planning to on relocating with your child, you must accomplish the 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. The notice form will indicate all the information you must include.
Family dispute resolution The Divorce Act includes the 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 that receive the Notice of Relocation can object by accomplishing 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 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 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.

Are you facing relocation issues with your child? A family lawyer can advise you on the proper legal steps to take and what evidence you need to gather. Contact Gelman & Associates today!

Get In Touch With the Experienced Family Lawyers from 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. You could be contravening several laws that could get you in trouble if you do not know what you are doing.

Before making plans to relocate with your child, cover your bases by consulting with the family lawyers from Gelman and Associates. Our experienced and knowledgeable lawyers can help you navigate the shoals of Ontario family law so you can go ahead with your relocation plans without a hitch.

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 (416) 736-0200 or 1-844-736-0200 to book your initial consultation.

Written by Lisa Gelman

Senior Lawyer

Senior Lawyer Lisa Gelman has over 25 years of family law experience and founded Gelman & Associates to provide strategic legal counsel in family law matters concerning divorce, parenting, separation, and more.

Frequently Asked Questions - child custody & access

It is not uncommon for someone to want to relocate after a divorce. If you still live in the marital residence, the familiar surroundings and memories may be too much for your heart to handle. Or in the process of reinventing yourself post-divorce you may want to take a new job, move closer to your friends and family, or simply wish to start fresh somewhere new. There are many reasons a person may want to move after going through a divorce, however if you have children you will need to think twice before making a big move.

Emotionally, it can be challenging for a child to move to an unfamiliar place. Often, they are most at ease in a familiar environment with access to family and friends. Changing schools, living in a new city or even a new house can be difficult on a child, especially after dealing with the emotional turmoil associated with divorce.

Legally, there are certain implications to relocating away from the current jurisdiction where the children ordinarily reside. Before moving you and the noncustodial parent can negotiate with the absence of a lawyer, a written agreement about the moce and any changes to visitation that may be needed. If you cannot reach an agreement about the move, you then must file an Application/Motion to the court to hear your matter and for a judge to make a decision before you move. Usually the court requires at least 30 days notice to the other parent of your court Application/Motion. It may take longer to reach an agreement with the other parent or get a court order. It is a good idea to give notice of 90 days before the move, as as soon as possible and to consult with a lawyer first. Upon receiving this notice, they can challenge your proposed change of residence or apply for a variation to the existing custody or access orders.

The leading case that sets out the legal test in determining mobility is Gordon vs. Goertz (1996) 2. S.C.R. 27

Similar to any other action involving variation of an existing custody order, the person challenging the relocation has to show that the move will result in a material change in circumstances affecting the child. Once this has been established, a judge will determine the best interests of the child in light of the relevant circumstances. These relevant circumstances include the existing custody and access relationship, the relationship between the child and the custodial parent, the views of the child, and the reason for the proposed change of residence among other circumstances. As with every other custody proceeding, the judges determination will turn on the best interests of the child. The judge’s inquiry is individualized and will involve all factors relevant to the case at hand.

Because mobility has become so easy in today’s society, often separation agreements or custody orders will address relocation and place specific restrictions on changing residences. Non-removal clauses that ban the extra-provincial removal of children without consent of the noncustodial parent. In these cases, the custodial parent who wishes to relocate will have to initiate the action by placing an application with the court.

If you are contemplating a move, you must consider the emotional needs of your child, as well as your former spouse’s right to challenge your relocation. Typically, courts only allow a custodial parent to relocate if the proposed move is in good faith and not intended to frustrate the noncustodial parent’s relationship with the child. Additionally, if a custodial parent relocates, they must be willing to accommodate the noncustodial parent’s access to the child; sometimes this means that the relocating parent will have to pay the additional costs of access.

In sum, if you are a custodial parent, moving isn’t as easy as just loading up the car and hitting the road – but it is still possible.

Yes, but they will need to establish paternity, especially if the father and the mother separate. Here are the ways to establish paternity as recognized by the court:

  • Act of birth
  • Presumption of paternity
  • Uninterrupted possession of status
  • Voluntary declaration

No. Even when the parents are unmarried, divorced, or separated, one parent cannot keep the child from seeing the other unless the court deems it appropriate to the child’s best interests.

Historically, mothers have been more likely to get sole custody of their child in both consent and contested orders, as they are usually the child’s primary caregiver. However, as more mothers also work outside the home, courts could also rule in favor of the father.

The majority of judges strive to make decisions that are in your children’s best interest. Giving full custody to one parent is usually the best option, except in cases with concerns such as child or substance abuse. This typically means keeping in contact with and maintaining relationships with both parents.
You should do everything possible to prepare for the subsequent child custody negotiations, whether you’re a parent seeking full custody or shared custody:
Be honest with yourself about your ability to manage things alone, in terms of practicality, finances, and other factors. You may get the result you want by presenting the strongest case for custody by doing the following:

  • Make a Strategy: If custody is granted, a court will expect you to be ready. Compile thoughtful replies to hypothetical queries posed in court.
  • Speak with people who have gone through the child custody procedure before you. They may provide you advice and tell you what to anticipate.
  • Judges look for proof of a meaningful relationship in addition to making sure you can provide a child’s practical and basic needs. Simply put, be involved in your children’s lives.
  • Continue to pay child support regularly, whether you’re asking the court for full or shared custody. When you start the procedure, you’ll want to make sure you have a strong track record.
  • Keep a detailed log of your visitation schedule. This is a crucial aspect of obtaining child custody. Visitation records reflect how often you see your children under the present arrangements and your dependability, as well as dedication to them.
  • During all child custody hearings, the court will inquire about acceptable living accommodations. Even if you live in a tiny apartment, you should create a unique and secure environment for your child.
  • Courts may determine child custody in part by how you treat your child’s other parent. Being hostile or unpleasant to the other parent makes collaborative decision-making more complicated and can break apart parent-child ties. As a result, judges are more inclined to favor the parent who isn’t behaving badly.
  • While parents typically spend a lot of time thinking about what they believe is best for their children, children’s perspectives are sometimes overlooked. The court will be interested in learning what the children desire and will most likely question them directly at some point throughout the proceedings. You can better inform your decision-making by asking your child what they think.

No. Parenting time and child support are different from each other. While it is a child’s right to be provided with financial support, it is also their right to spend time with their parents. Thus, even if the child support was cancelled the parent formerly supporting can still enjoy parenting time with the child.

“There is no fixed age for when a child can say which parent they want to live with after a divorce. However, by law, a child must be 16 years old to decide on this matter. The exception to this is when there is a court order stating that a child/ren must live with one parent until they turn 17 or 18.
“

Under certain circumstances, it is possible to legally prevent your child/ren’s father from seeing or contacting them. It may be necessary if he presents a potential danger to your child/ren. If you were never married to the father of your child and there is no court order saying otherwise, you can do anything you want until paternity is confirmed.

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