If you are recently separated or divorced and considering moving either within Ontario or outside the province and you have a child or children, it’s important to understand that relocation is not just a personal or practical decision. It is also a legal issue governed by both the Divorce Act and Ontario’s Children’s Law Reform Act (CLRA).
Whether you are the parent wishing to relocate or you’ve received notice that your co-parent intends to move with your child/children, both Acts contain detailed provisions outlining your rights and obligations. These laws apply whether the move is a short distance or much farther, including to another province or country.
Under both the Divorce Act and CLRA, a parent must first determine whether the intended move is a simple change of residence (that does not disrupt the child’s relationship with the other parent) or a relocation (a move that will impact the parenting time or schedule with the other parent). In relocation cases, the law requires that the moving parent give the other parent at least 60 days’ written notice using the proper form, and the other parent then has 30 days to object.
If there is an objection, the matter can be taken to court, where the judge will decide whether the move is in the best interests of the child. The best interest of the child is a standard that is important in family law and central to both pieces of legislation. The best interest of the child prevails and is the deciding factor in whether the child should move. Factors the court will consider include the child’s relationship with both parents, the reasons for the move, the impact on the child, and whether the parenting plan can reasonably accommodate the new distance.
As set out in section 16.9 of the Divorce Act and section 39.3 of the CLRA, the other parent must complete the required notice form and serve it on their ex at least 60 days before the planned move. If the other parent agrees or does not object, the other party and the child or children can move on the date set out in the Notice of Relocation Form.
If the other parent does not agree, they can formally object within 30 days of receiving the notice by completing an Objection to Relocation form or by applying to the court to stop the relocation. They must set out why they object to the move and parenting arrangement.
It’s also important to note that even a parent with sole decision-making responsibility does not have the automatic right to relocate with the child. Legal notice and, in some cases, court approval is still required.
In situations involving family violence, the Divorce Act and CLRA also allow for exceptions to the notice requirement, to protect the safety and well-being of the parent or child. The court may permit a parent to relocate without giving advance notice if doing so could pose a serious risk of harm.
The case of Gordon v Goertz is a 1996 Supreme Court of Canada decision dealing with issues regarding parental relocation. The court in this case established a test to ascertain the best interest of the child in mobility cases. The principles in this case are important but please note that every case is fact specific.
We understand that relocation decisions can be emotional, complicated, and time-sensitive. Whether you’re hoping to move with your children or you’re worried about how a proposed move might affect your parenting time, we can help you navigate the legal process, understand your rights, and protect your child’s best interests every step of the way.
If you have questions about relocation, need guidance from an experienced separation attorney in Mississauga, or require assistance with any other family law matter, we invite you to contact us today to schedule a confidential consultation.
