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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.

 

 

Pro Tip

“If you want to have a solid case for relocation, you need a plan for your child to spend time with the other parent and other significant people in your child’s life.”

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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.

 

Child Relocation: Everything You Need to Know FAQs

Ontario law does not specify the age at which a child can decide which parent to live with.  At most, the Court may consider the preference of the child but that does not necessarily mean that the Court will act favorably on it.  The court will consider the child’s maturity, ability to articulate their desires, and the reasoning behind their views when seeking their opinion.

Let us consider that the “moving away” is relocation and not just a change in residency.

Then, let us qualify that the mother will take your child with her.

If the mother is the primary caregiver of the child, you may oppose the relocation by applying the principles laid down under the Gordon vs. Goertz case.  You must present your case strongly as to why potentially cutting your child’s relationship as the primary caregiver is to your child’s best interest.  This situation falls under the purview of Section 16.93(2) of the Divorce Act.

If both you and the mother have equal parenting time over your child, the mother of the child has the burden of proof as to why the relocation is for the best interest of your child.  This situation falls under the purview of Section 16.93(1) of the Divorce Act.

If there is no Court ordered, approved, or awarded parenting time or separation agreement, as contemplated under Section 16.93(3) of the Divorce Act, the mother has the burden of proof to show that relocation is in the best interest of your child.

Note that even if the burden of proof is not laid upon you, it still recommended that you present a strong opposition to the relocation.

There is no hard and fast rule on “good reasons” to relocate.  What you should consider is the principle laid out under the Gordon vs. Goertz case.  Remember it is not what will make your life easy as the caregiver of your child, rather it should be because relocation is in the best interest of your child.  To reiterate, the principle laid down in the Gordon and Goertz case:

“(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent; 

(c) the desirability of maximizing contact between  the child and both parents; 

(d) the views of the child; 

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; 

(f) disruption to the child of a change in custody; and 

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.”

Then, as advised above, it is important to list down the pros and cons (taking into primary consideration the best interest of the child) in relocating.  These may include the following:

  • Family support
  • Lower cost of living
  • Better employment opportunities
  • Safer neighbourhood
  • Higher standards of living
  • Better schools
  • Proximity to facilities that cater to children with special needs
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