A separated parent who intends to relocate with a child must give the other parent at least 60 days’ written notice. The other parent then has 30 days to object, and where an objection is made, the move requires a court order.
The rules took effect on March 1, 2021, in the Divorce Act and in the Children’s Law Reform Act.
How Foote Law Can Help
Foote Law acts for parents proposing a move and for parents opposing one:
- Assessment of whether a proposed move constitutes a relocation or a change of residence.
- Preparation of the notice of relocation and the parenting proposal it must contain.
- Preparation and service of an objection within the 30-day period.
- Applications to authorize or prohibit a relocation.
- Applications to waive or modify the notice requirements where there is a risk of family violence.
- Applications to vary a parenting order after a move.
- Representation at conferences, motions, and trial.
Foote Law accepts Legal Aid Ontario certificates and Employee Assistance Program referrals. Call Foote Law in Orangeville at (519) 940-8309 or in Fergus at (519) 772-6139. Foote Law serves clients in Orangeville, Fergus, Brampton, Shelburne, Alliston, Barrie, Owen Sound, Newmarket, Guelph, Centre Wellington, and throughout the Greater Toronto Area, in person and virtually.
Relocation or a Change of Residence
Section 2(1) of the Divorce Act defines a relocation as a change in the place of residence of a child or of a person who has parenting time or decision-making responsibility or a pending application for a parenting order, that is likely to have a significant impact on the child’s relationship with a person who has parenting time, decision-making responsibility, a pending application, or contact under a contact order.
The test is effect, not distance. A move within the same city can be a relocation where it changes the child’s school or makes the existing schedule impractical, and a longer move can fall short of the threshold where the schedule is unaffected.
Section 16.7 provides that section 16.8 does not apply to a change in residence that is a relocation. Where a move is not a relocation, section 16.8 requires written notice of the date of the change and the new address and contact information, without the 60-day period or the objection process. Under section 16.8(3) and (4), the court may order that those requirements do not apply or modify them on an application brought without notice to the other party.
Restrictions That Already Apply
An existing order may settle the question before any notice is given. Under section 16.1(7), a parenting order may authorize or prohibit the relocation of a child. Under section 16.1(9), it may prohibit the removal of a child from a specified geographic area without written consent or a court order. Section 16.5(8) permits the same restriction in a contact order.
A parent bound by a geographic restriction cannot move the child within the terms of that order. The order itself can be varied on application.
The 60-Day Notice
Section 16.9(1) requires a person with parenting time or decision-making responsibility who intends to undertake a relocation to notify every person who has parenting time, decision-making responsibility, or contact under a contact order, at least 60 days before the expected date of the proposed relocation, in the form prescribed by the regulations.
Section 16.9(2) requires the notice to set out:
- The expected date of the relocation.
- The address of the new place of residence and contact information.
- A proposal as to how parenting time, decision-making responsibility, or contact could be exercised.
- Any other information prescribed by the regulations.
Under the Children’s Law Reform Act, Ontario Regulation 155/21 prescribes the notice form and the permitted methods of service.
What the Proposal Should Address
The proposal is a required element of the notice, and section 16.92(1)(f) directs the court to its reasonableness, taking into account the location of the new place of residence and the travel expenses.
Matters a proposal can address include:
- Extended blocks of parenting time during school holidays in place of a mid-week schedule.
- Scheduled communication between visits by telephone or video.
- An allocation of the travel costs the new distance creates.
Where Notice Would Create a Risk
Section 16.9(3) permits the court, on application, to order that the notice requirements do not apply, or to modify them, where it is appropriate to do so, including where there is a risk of family violence.
Section 16.9(4) permits that application to be made without notice to any other party, so a parent who fears that disclosing a new address would create a risk can seek the order before serving anything.
If the Other Parent Agrees
Where both parents agree to the move and to the resulting changes in parenting time, a court order is generally not required. The agreement can be recorded in an amended parenting agreement or in a consent order. An existing order prohibiting the relocation or restricting the child’s geographic area overrides that agreement, and it must be varied before the move proceeds.
Section 16.91(1)(b) also permits the relocation to proceed on the date in the notice where the person who received it does not object within 30 days and no order prohibits the move. A parent who receives a notice and takes no step within the 30 days may therefore lose the ability to prevent the relocation.
Objecting to a Move
Under section 16.91(1), a parent who has given notice may relocate on the date stated in the notice where the court authorizes it, or where no objection is made within 30 days after the notice is received and no order prohibits the relocation.
An objection is made either in the form prescribed by the regulations or by an application to the court. Section 16.91(2) requires the form to set out:
- A statement that the person objects to the proposed relocation.
- The reasons for the objection.
- The person’s views on the proposal set out in the notice.
- Any other information prescribed by the regulations.
Under the Children’s Law Reform Act, the objection is made under section 39.3(5) with the contents required by section 39.3(6), and Ontario Regulation 155/21 requires the objecting person’s name, current address, and contact information in addition.
The 30 days run from receipt of the notice. A parent who serves a notice should record how and when it was delivered.
Who Must Prove What
Section 16.93 sets three burdens, and which one applies depends on the arrangement the parties have been substantially complying with under an order, arbitral award, or agreement. The provision turns on the arrangement actually being followed, not on the arrangement recorded on paper, so a schedule that has drifted from the order can change which burden applies.
- Where the child spends substantially equal time in the care of each party, the party who intends to relocate has the burden of proving that the relocation would be in the child’s best interests.
- Where the child spends the vast majority of their time in the care of the party who intends to relocate, the party opposing the relocation has the burden of proving that it would not be in the child’s best interests.
- In any other case, including where there is no order, award, or agreement at all, the parties share the burden of proving whether the relocation is in the child’s best interests.
Section 16.94 permits the court to decide not to apply the first two burdens where the order in question is an interim order, so a parent operating under a temporary arrangement cannot assume the burden will fall as it would under a final order.
Under the Children’s Law Reform Act, section 39.4(6) places the burden on the objecting parent where the child spends the vast majority of time with the parent who intends to relocate.
What the Court Considers
Section 16.92(1) requires the court, in addition to the best interests factors in section 16, to take into account:
- The reasons for the relocation.
- The impact of the relocation on the child.
- The amount of time spent with the child by each person who has parenting time or a pending application for a parenting order, and the level of involvement in the child’s life of each of those persons.
- Whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, an arbitral award, or an agreement.
- The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside.
- The reasonableness of the proposal to vary the exercise of parenting time, decision-making responsibility, or contact, taking into consideration the location of the new place of residence and the travel expenses.
- Whether each person who has parenting time, decision-making responsibility, or a pending application has complied with their obligations under family law legislation, an order, an arbitral award, or an agreement, and the likelihood of future compliance.
Section 16.92(2) prohibits one question. Where the child’s relocation was prohibited, the court shall not consider whether the person who intends to relocate the child would relocate without the child or not relocate at all.
Two of the seven factors concern conduct rather than the merits of the move. Paragraph (d) directs the court to whether the relocating parent complied with the notice requirements, and paragraph (g) to whether each party has complied with their family law obligations and the likelihood of future compliance. A parent who disregards the notice provisions or an existing order puts those factors in issue before the substance of the move is reached.
Under the Children’s Law Reform Act, section 39.4(3) directs the court to the best interests of the child in accordance with section 24, together with the equivalent relocation factors.
While the Dispute Is Pending
Where an objection is made, the existing arrangement ordinarily continues until the court decides. Courts approach changes to an interim parenting arrangement restrictively, and the existing schedule is not readily disturbed before a full hearing.
Who Pays for the Travel
Section 16.95 provides that where a court authorizes the relocation of a child, it may apportion the costs relating to the exercise of parenting time by the person who is not relocating between that person
and the person who is relocating the child.
The apportionment is discretionary, and it is one of the terms a proposal can address.
If a Move Has Already Happened
Section 17(5.2) provides that the relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of a variation. A variation of a parenting order requires a material change in circumstances, and a completed relocation satisfies that requirement.
Section 17(5.3) provides that a relocation prohibited by a court does not, in itself, constitute a change in circumstances. A parent who moves in the face of a prohibition cannot rely on the move to establish the material change a variation requires.
The Children’s Law Reform Act takes the same approach in section 29(2).
When a Person With Contact Moves
Section 16.96(1) requires a person who has contact with a child under a contact order to give written notice of an intended change in their own place of residence, setting out the date, the new address, and their contact information.
Under section 16.96(2), where the change is likely to have a significant impact on the child’s relationship with that person, the notice must be given at least 60 days in advance, in the prescribed form, with a proposal as to how contact could be exercised.
If the Parents Were Never Married
The Children’s Law Reform Act governs where the parents were never married and no divorce proceeding is underway. Its structure differs from the federal Act, and the section numbers are not interchangeable.
Section 39.1 requires notice of a change in residence. Section 39.3 governs relocation, with the 60 days’ notice in subsection (1), the prescribed form in subsection (2), and the objection in subsections (5) and (6). Section 39.4 authorizes the relocation where no objection is made and no order prohibits it, sets the factors in subsection (3), and places the burden in subsection (6).
Using the form prescribed under the wrong statute can delay a matter, so the applicable Act should be confirmed before notice is served.
Planning a Move With a Child?
A relocation turns on whether the move meets the statutory threshold, on the proposal contained in the notice, and on which parent carries the burden under the arrangement the family has been following.
Call Foote Law in Orangeville at (519) 940-8309 or in Fergus at (519) 772-6139.
