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Parental Relocation

A 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. Once an objection is made, the relocating parent cannot move the child without a Court Order authorizing the relocation.

Foote Law acts for parents proposing a move and for parents opposing one, from its offices in Orangeville and Fergus.

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How Foote Law Can Help

Relocation disputes run on tight timelines, and the steps taken in the first few weeks often shape the outcome. Foote Law acts on relocation matters at every stage, including:

  • Assessing whether a proposed move meets the legal threshold for a relocation.
  • Preparing the Notice of Relocation and the parenting proposal it must contain.
  • Preparing and serving an Objection within the 30-day period.
  • Bringing Applications to authorize a relocation and Motions to prohibit one.
  • Bringing Applications to waive or modify the notice requirements where there is a risk of family violence.
  • Bringing Applications to vary a parenting Order following a move.
  • Representing clients 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, Centre Wellington, Brampton, Shelburne, Alliston, Barrie, Owen Sound, Newmarket, Guelph, and throughout the Greater Toronto Area, in person and virtually.

Is It a Relocation?

Not every move is a relocation in the legal sense. A relocation is a change in residence that is likely to have a significant impact on a child's relationship with a person who has parenting time, Decision-Making Responsibility, or contact under a Contact Order.

The test is effect, not distance. A move across the city can qualify if it means the child changes schools or the existing parenting schedule no longer works. A longer move may not qualify if the schedule is unaffected.

A move that falls below that threshold is a change in residence. The moving parent must still give notice of the date of the move and the new address, but there is no 60-day notice period and no objection process.

Parents should also review any existing Order or agreement. An Order may prohibit relocation outright, or it may restrict removing the child from a specified geographic area without consent or a further Court Order.

The Notice of Relocation
& Objecting to a Move

The Notice of Relocation

Under section 16.9 of the Divorce Act, a parent who intends to relocate must notify everyone who has parenting time, Decision-Making Responsibility, or contact with the child. The notice must be given at least 60 days before the expected date of the move, in the prescribed form. It must set out the expected date, the new address and contact information, and a proposal for how parenting time, Decision-Making Responsibility, or contact could be exercised after the move.

The proposal is the part of the notice the Court examines most closely. Section 16.92(1)(f) directs the Court to consider the reasonableness of the proposal, taking into account, among other things, the location of the new residence and the travel expenses involved. A notice that gives only a date and an address offers the Court nothing to assess and does little to help the relocating parent's case.

Objecting to a Move

A parent who receives a Notice of Relocation has 30 days from receipt to object. The objection can be made in one of two ways: by delivering the prescribed objection form or by applying to the Court. An objection by form must state that the parent objects, the reasons for the objection, and the parent's views on the proposal set out in the notice.

A parent who objects by form should keep proof that the form was delivered within the 30 days and that the other parent received it.

Not everyone who receives notice may object. Under section 16.91(1), the right to object belongs to a person with parenting time or Decision-Making Responsibility. A person whose only connection to the child is contact under a Contact Order receives notice but cannot object. The objection process also applies only to the relocation of a child, so a parent who is notified that the other parent is moving without the child cannot use it to stop that move.

If no objection is made within 30 days and no Order prohibits the move, the relocation may proceed on the date set out in the notice.

Who Has to Prove the Move Is Right
& What the Court Considers

Who Has to Prove the Move Is Right?

Once an objection is made, the relocating parent must apply to the Court for authorization before moving. The objecting parent does not have to start proceedings.

Section 16.93 then decides which parent carries the burden of proof. The answer depends on the parenting arrangement set out in an existing Order, arbitral award, or agreement, and on whether the parents have substantially complied with it:

  • Substantially equal time with each parent: the relocating parent must prove that the move is in the child's best interests.
  • The vast majority of time with the relocating parent: the objecting parent must prove that the move is not in the child's best interests.
  • Any other case: both parents bear the burden of proving whether the move is in the child's best interests.

Both elements matter. A parent cannot rely on the schedule written in an Order if the parents have not actually been following it; the burden shifts only where the parties have substantially complied with the arrangement. Where the Order is an interim Order, section 16.93(4) allows the Court to decline to apply the first two rules.

What the Court Considers

In addition to the general best interests factors in section 16 of the Divorce Act, section 16.92(1) requires the Court to consider:

  • the reasons for the relocation;
  • the impact of the relocation on the child;
  • the time each person with parenting time or a pending parenting application spends with the child, and each person's level of involvement in the child's life;
  • whether the notice requirements were complied with;
  • whether an Order, arbitral award, or agreement specifies the geographic area in which the child is to reside;
  • the reasonableness of the relocating parent's proposal, taking into account the location of the new residence and the travel expenses; and
  • whether each person 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) takes one question off the table. The Court must not consider whether the relocating parent would move without the child, or stay, if the relocation were prohibited. The application is decided on the child's best interests, not on what the parent might do if refused.

Interim Motions, If a Parent Moves Anyway
& Married and Unmarried Parents

Interim Motions

  • Relocation is often decided on an interim Motion, on Affidavit evidence, well before any Trial.
  • That early decision can carry lasting weight. Once a child has moved and settled into a new home and school, a Court may be reluctant to order a return at Trial months later, because disrupting a child's circumstances a second time rarely serves the child.
  • The evidence filed on the interim Motion therefore matters more than the word "interim" suggests.

If a Parent Moves Anyway

  • A parent who moves the child without giving notice, during the objection period, or in breach of an Order can be ordered to return the child.
  • A unilateral move also works against that parent in the relocation case itself, because two of the section 16.92(1) factors ask whether the notice requirements were complied with and whether the parent has met their family law obligations.
  • In proceedings under the Children's Law Reform Act, section 22(3) provides that removing or withholding a child without the required consent does not change the child's habitual residence, unless there has been acquiescence or undue delay in starting court proceedings. As a result, a parent generally cannot move a case to a new jurisdiction simply by moving the child there.
  • Where disclosing a new address would create a risk of family violence, the Court can waive or modify the notice requirements. Under sections 16.9(3) and (4) of the Divorce Act, that application can be brought without notice to the other parent. A parent facing that risk should bring the application rather than move without telling anyone.

Married and Unmarried Parents

  • The Divorce Act governs relocation where the parents are married and a divorce proceeding is underway or has concluded. The Children's Law Reform Act governs where the parents were never married, or where they are married and separated but no divorce proceeding has been started.
  • Both statutes require 60 days' notice and give the other parent 30 days to object, and both apply similar factors and burdens of proof.
  • The section numbers and prescribed forms differ, however, and using the wrong form can delay a matter. Foote Law's guide to Relocating with a Child After Separation sets out both schemes in full.

Planning or Opposing
a Move?

A relocation case turns on whether the move meets the legal threshold, on the strength of the proposal in the notice, and on which parent must prove their case. Because the notice and objection deadlines are short, early legal advice can make a significant difference.

519-940-8309 Orangeville 519-772-6139 Fergus
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