If you share custody of your child with a former partner, moving is not a simple matter. There are many factors the court will consider in the relocation of a child. Decisions are made based on the best interest of the child and courts recognize the importance of a close and continuous relationship with both parents.
Not all moves are considered a “relocation.” The Divorce Act has different rules depending on whether a move by a person with parenting responsibilities or by a child will affect the child’s relationships in a considerable way.
A “relocation” generally means the parenting time schedule for the child will no longer work because of the move. For example, a parent’s move with their child from Newfoundland to Ontario would generally be considered a relocation. A parent’s move from Newfoundland to Ontario away from their child would also be a relocation. This is because of the distance between the parent’s new home and the child’s current home, and how this affects the parenting time schedule.
If the custodial parent plans to move away from the non-custodial parent or outside of Ontario, the custodial parent must notify the other parent. Regardless of the distance, a custodial parent must continue to comply with any court order regarding parenting time unless and until that order is changed. If the non-custodial parent objects he or she can file an application to stop it.
If there is no existing court order for custody and visitation the custodial parent is free to move away. However, the non-custodial parent can object, especially if the move will interfere with the ability to visit with a child. When a current order is in place factors taken into consideration include distance, quality of life, school district and activities nearby. Whether there is an order in place or not, it’s a good idea to start the process by talking to a lawyer and provide the other parent with relocation plans.
You can usually move without anyone’s permission if the move is not likely to have a big impact on your child’s relationship with your partner or anyone with decision-making responsibility, parenting time, or contact under a court order. These used to be called custody and access.
For example, you can usually move without permission if the move doesn’t:
- change your child’s school or daycare, and
- impact anyone with rights to make decisions or spend time with your child.
But if your move is likely to have a big impact on your child’s relationship with anyone with rights to make decisions or spend time with them under a court order, you need their permission or a new court order before you move. The law calls this type of move a relocation.
For example, moving to another province or country, or even moving to another municipality within Ontario may be a relocation.
Remember that it’s usually best for your child to spend time with each parent. But there is no rule that each parent must spend equal time with the child.
Notice Rules
There are rules about notice that you usually have to follow if you want to move with your child and your partner or another person has rights under a court order.
This might be the other parent who has decision-making responsibility or parenting time with your child. Or another person who is not a parent, but who has a contact order to spend time with your child, such as a grandparent.
These rules say:
- you must give notice to if you want to move,
- the timing of the notice, and
- that you need permission from that person or the court before you move with your child.
Before going to court, try talking to your partner, or the other person with rights to your child, to see if they will agree to the move. You can also get help from a family law professional such as a lawyer or mediator to help you resolve the issue out of court.
If you don’t agree with the plan to relocate your child, there are two ways for you to object.
Two points about objections:
- It is only possible to object to the plan to relocate your child; one parent cannot object to the other parent’s plan to move;
- Only a person with parenting responsibilities can object. A person with a contact order cannot object to a plan to relocate a child. They can, however, ask for a contact order to be changed if the relocation is permitted.
If you do not agree with the plan to relocate your child, and you cannot come to an agreement with the other person with parenting responsibilities, you have 30 days to object after you receive the notice.
There are two ways to object:
- you can object by giving the other person specific details about your objection. The Objection to Relocation form shows you all of the information you must include in your objection; or
- you can apply to the court to stop the relocation
Once you object, the relocation cannot take place until a judge decides that it is in the child’s best interests.
The Objection to Relocation form asks you to explain:
- that you object to the relocation
- why you object
- your views on the proposal for parenting time, contact and decision-making responsibility
If you receive an Objection to Relocation, or a court application opposing the relocation has been filed, you cannot move the child until the court makes an order allowing the move.
Best Interests of the Child Factors
The court will decide whether a child can or cannot relocate based on the best interests of the child. There are a number of factors the court will look at to determine the best interests of the child (see parenting arrangements fact sheet). There are also other factors the court must look at in a relocation case.
No single factor will decide the case, and the court will look at how each one applies in your situation.
In a relocation case, the extra factors the court will look at are:
- The reason for the relocation – the court will want to know why there is a plan to move. For example, is it for a new job, to be with a new partner, or for the child to attend a specific school?
- The impact of the relocation on the child – for example, what are the child’s family connections to the current community and the proposed new community?
- The parenting time and involvement that each parent has with the child – the court will want to know, for example, whether the child has equally strong relationships with both parents, or whether one of the parents has very little involvement with the child.
- Whether the person planning the relocation has followed the notice rules– the court will want to know if the move has been well planned and if the other parent has been informed and given an opportunity to respond to the proposal. If you do not follow these rules, the court may see this negatively.
- Whether there is a court order, agreement or arbitral award that says a child is supposed to live in a certain place. For example, if you and the other parent have a separation agreement that says that the child must continue to live in a specific city, this is a factor the court will look at.
- Whether the proposal to change the parenting arrangement is reasonable. The court will look at the location of the child’s proposed new home, and how practical and costly it would be for the non-moving parent to travel to the child’s new location to spend time together. The court will also look at how easy it is for the child to travel back to their old place of residence. A child’s age and personality, along with airline, train and bus rules about children’s travel, are all important to think about.
- Whether parents have been complying with their family law orders, agreements and arbitral awards. For example, a court would want to know whether a parent who is proposing a move has denied parenting time in the past. This may predict future problems. The court might also want to know if the parent who does not want the move has failed in the past to use their parenting time or not paid child support, putting the other parent at financial risk.
Remember: The court can make exceptions to the notice rules in certain cases, for example, where there has been family violence.
Who has to prove whether the relocation is in the best interests of the child
Equal parenting time
If both parents have substantially equal parenting time with the child (have roughly equal responsibility for caring for the child), the person planning to relocate with the child must prove on the balance of probabilities (which means it is more likely than not) that the move is in the best interests of the child.
Clear primary caregiver
If the person planning to relocate with the child has the vast majority of the parenting time with the child, the other parent must prove on the balance of probabilities (which means it is more likely than not) that the move would not be in the best interests of the child.
If you don’t have a court order
If you don’t have a court order about decision-making responsibility and parenting time, these rules do not apply to you.
But if you have a parenting plan, separation agreement, or arbitration award, you must follow what it says about moving.
Get legal help
You can talk to a lawyer who can help you understand what the law says you need to do if you want to move.
We will help you understand all the necessary steps involved in the relocation requests. If you are the parent requesting to move away we’ll walk you through the factors the judge will consider and see that your relocation request is handled properly.
We are focused on protecting the interest of our clients and the children involved, we will walk you through each step and help you understand your rights and responsibilities.