A job offer in Calgary. A parent’s illness in Sudbury. A cheaper house in Woodstock, an hour and a half away, that would finally give the kids their own rooms. Reasons to move can be excellent, and they can still run straight into another parent’s relationship with a child.
Parents sometimes assume that because the children live mainly with them, they can simply pack up and go. Others assume the opposite, believing a parent can never leave without permission. Neither is correct. Canadian law sets out a defined process with notice requirements, an objection period, and a specific test a court applies if the parents cannot agree. Knowing how the process works before you sign a lease, or before you respond to a notice, can make a major difference.
This is general information rather than legal advice. Relocation cases are highly fact-dependent, and if you are concerned for your safety or your child’s, speak with a lawyer or a support service before you give any notice.
Which law applies, and what counts as a relocation
The rules appear in two statutes that are nearly identical. Parents who are married and going through a divorce, or who already have a Divorce Act order, follow the relocation provisions that begin at section 16.9 of the federal Divorce Act. Others, including most parents who were never married, follow sections 39.3 and 39.4 of Ontario’s Children’s Law Reform Act. Each law has its own prescribed notice form, so using the correct one is important.
The law distinguishes between two kinds of move:
- A change in residence is any move by a person with parenting time, decision-making responsibility or contact, and possibly the child. Notice is still required, stating the date of the move and the new address, but it does not bring the formal objection process.
- A relocation is a change in residence that is likely to have a significant impact on the child’s relationship with someone who has parenting time, decision-making responsibility or contact, or who has applied for a parenting order.
No fixed number of kilometres decides this. A move from Brampton to Mississauga may simply be a change of residence, especially if the children’s schools and schedule stay the same. But a short move may have a significant impact if it ruins a tightly scheduled arrangement built around a parent’s shift work and school pickup. Conversely, a longer drive might have little effect on a teenager who visits on weekends and travels by GO Train. When you are not sure which label applies, treat the question seriously and get advice. Giving the fuller notice is usually safer than giving too little.
If you are the parent who wants to move
The person who intends to relocate has to give written notice at least 60 days before the expected date of the move. The notice has to go to anyone else with parenting time, decision-making responsibility or contact under a contact order. It must include:
- the expected date of the move
- the address of the new residence and contact information
- a proposal for how parenting time, decision-making responsibility or contact could be exercised after the move
Use the prescribed form for your statute, available from Ontario’s court forms website. The proposal is the part to spend your time on. Saying “you can see them whenever you like” is unlikely to reassure anyone or impress a judge. A detailed plan shows how you will protect the other parent’s relationship with the child: extended summer and school-break time, who drives or pays for flights, how video calls will work, and where exchanges will take place.
Keep proof that the notice was given and when. Also be wary of telling the children before you have thought through how you will discuss this with the other parent, as it can quickly become a source of conflict.
In situations involving a risk of family violence, a court can modify or waive notice requirements. That application may be made without notice to the other party, because alerting the other parent could itself be dangerous. If this is relevant to you, speak to a lawyer first, and consider contacting a Family Court Support Worker, who can help with safety planning.
If you receive a notice
The clock begins when you receive the notice. You have 30 days to object, and there are two ways to do so:
- Serve the prescribed objection form, stating your reasons and your position on the proposal.
- File an application in court, asking for an order preventing the move.
If you do not object within 30 days, and no court order prohibits the move, the other parent has the right to relocate the child on the date in the notice. Silence therefore has real legal consequences. Even if you hope to work things out, protect your position by responding on time and in the proper way, and consider seeing a lawyer right away. Keep the envelope or any record of when you received the notice. If your family’s situation is already in court in Brampton, a motion may be needed as part of the existing case.
Note that a person with only a contact order is entitled to notice, but only a person with parenting time or decision-making responsibility has the formal right to object in this manner. They may still have other options if a move would harm the child’s relationship with them.
When can a move go ahead?
A parent may relocate on the date in the notice if either of the following is true:
- a court has authorized it
- the other side has not objected within 30 days, and no order prohibits it
An objection does not automatically prevent you from moving by yourself, but moving a child after an objection without an order is a serious risk. If you need to get a decision before a move date, it may be possible to ask the court for an urgent or expedited motion. The case may be heard at the Brampton courthouse, at 7755 Hurontario Street, in the Superior Court or Ontario Court of Justice, depending on where your case is. Plan for this. A job start date that gives you only a few weeks may not leave enough time for a contested motion to be heard.
How a judge decides
The test is the best interests of the child. Along with the regular best-interests factors, the Divorce Act and the Children’s Law Reform Act both list factors that apply specifically to relocation:
- the reasons for the move
- the impact of the move on the child
- the amount of time each person has been spending with the child, and how involved each has been in the child’s life
- whether notice requirements were followed
- whether an order, arbitration award or agreement says where the child must live
- how reasonable the relocating parent’s proposal is, including proposed travel costs
- whether each person has complied with their obligations under family law, orders, arbitration awards and agreements, and the likelihood of future compliance
Two specific points are worth highlighting. A court must not consider whether the relocating parent would move without the child if the relocation were prohibited, or whether the other parent would move too. So you will not be asked to choose between your job and your child as a formal part of the test. Also, a good reason for moving is relevant but does not decide the case on its own. A strong financial or family motive will still be weighed against the impact on the child.
Who has to prove what
Burden of proof depends on how the time has actually been shared. The law looks at what parents are substantially complying with under an order, award or agreement:
- Substantially equal time. The parent who wants to move must prove that the move is in the child’s best interests.
- The child spends the vast majority of time with the parent who wants to move. The other parent must prove the move would not be in the child’s best interests.
- Any other situation. Both parties share the burden of showing whether the relocation is in the child’s best interests.
Temporary orders can complicate this, because a court has some room to decide how far these burdens should apply when the current arrangement rests on an interim order rather than a final one. If your schedule comes from a temporary order, ask a lawyer how that may affect your case.
Evidence that helps
Solid, specific evidence will almost always be more helpful than general statements. Depending on your position, this can include:
- an offer letter, with salary and start date, and evidence you looked for comparable work closer to Brampton
- housing costs in both places
- information about the proposed school, child care and family support nearby
- a calendar of current time with each parent, showing who actually does what
- the child’s ties to schools, friends, activities, doctors, relatives and communities in Peel
- a realistic and costed travel plan, including the child’s age and tolerance for travel
- the child’s views, where appropriate, sometimes through a professional such as the Office of the Children’s Lawyer
Try not to create evidence that looks manipulated. Courts are alert to last-minute changes meant to create a certain impression.
What can go wrong when someone moves first
Taking a child without following the process can seriously harm your case. A court may order the child returned, and may take your conduct into account later as it decides whether you can be trusted to support the other parent’s relationship. In severe situations, particularly when a child is taken across a border, other serious legal consequences can follow, including international child abduction proceedings or criminal law concerns.
If your child has been moved without notice, act quickly. Gather what you know, preserve any messages and contact a lawyer right away, since a court may be more willing to return a child where there is little delay. If you are concerned about a child’s immediate safety, call Peel Regional Police or your local police.
Trying to reach an agreement
A relocation does not have to end in a court battle. A mediated agreement or negotiated consent order can include a revised schedule, travel-cost sharing, and adjustments to support. Whatever you agree should be put into writing, and it is usually best to get it into a court order so that the arrangement can be enforced. Keep in mind that a move may also affect the child support calculation, and that high travel costs may be relevant in any undue hardship analysis.
If you are considering a move, the best time to seek legal advice is before you commit to it. If you have just been served with a notice, you should seek advice well before your 30 days run out. Our custody and parenting page explains how these issues are typically approached, and you can contact us for a consultation.