Relocation:

Should We Stay or Should We Go?

By Sydney B. W. Archibald

There are several reasons why a parent may consider moving with their child during a separation.  Perhaps there is an opportunity for a better-paying job, more affordable housing, or living closer to a new partner or family.  Parents are often unsure of whether they are permitted to pursue these opportunities and move with a child.

This article aims to clarify the relocation process and outlines considerations parents must take into account before taking steps to move.  

Not All Moves are Considered Equal

Moves within the same geographic area, or local moves, are treated differently than moves more substantial in nature. For local moves, no advance consent or court order is required—the moving party is only obligated to provide the other with written notice setting out the date on which the change is expected to occur and the address of the new place of residence and contact information of the person or child. 

A substantial move, known as a “relocation”, is a change in residence that is likely to have a significant impact on the child’s relationship with a person who has parenting time or decision-making responsibility.  Often, this arises when one parent wishes to move and the existing parenting time schedule will no longer work.

Prior to relocating with a child, the moving party must satisfy a number of requirements which are set out at section 39.3 and 39.4 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) (non-married parties) and section 16.9, 16.91, 16.92, and 16.93 of the Divorce Act, R.S.C 1985, c. 3 (2^nd Supp.) (married parties).

The party seeking to relocate must first notify the other party at least 60 days before the expected date of the move.^[1]  This notice must be in writing and in a prescribed form.  The notice must set out:

1. the expected date of the relocation;
2. the address of the new place of residence and contact information of the person or child, as the case may be;
3. a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and
4. any other information prescribed by the regulations.

Once proper notice is provided, the relocating party may move with the child on the date in the notice, if the other party did not object to the relocation (in writing or by court application) within 30 days of receipt and there is no court order prohibiting the relocation.  The relocating party may also move with the child if permitted by a court. 

What Happens if the Non-Moving Party Objects?

If there is an objection, the moving party must have the relocation authorized by a court prior to relocating.  The court will be required to determine whether the move should be permitted based on the best interests of the child.  In addition to the best interests of the child criteria (section 24 of the CLRA, section 16 of the Divorce Act) the court must take the following into consideration (see subsection 39.4(3) of the CLRA and section 16.92 of the Divorce Act):

1. the reasons for the relocation;
2. the impact of the relocation on the child;
3. 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;
4. whether the person who intends to relocate the child complied with any applicable notice requirement, legislation, regulation, order, arbitral award, or agreement;
5. the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
6. the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
7. whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under any applicable legislation, regulation, order, arbitral award, or agreement, and the likelihood of future compliance.

Importantly, section 16.93 of the Divorce Act and subsections 39.4(5), (6), (7) of the CLRA establishes presumptions or burdens in proving whether the relocation is in the best interests of the child:

1. The relocating party has the burden of proving the relocation would be in the best interests of the child if the parties are following an order or agreement that provides for substantially equal time in the care of each party;
2. The party opposing the relocation has the burden of proving the relocation would not be in the best interests of the child if the parties are following an order or agreement that provides for the vast majority of time in the care of the relocating party; or
3. In any other case, both parties have the burden of proving whether the relocation is in the best interests of the child.

Should a party wish to move with a child on an interim basis (before trial), there are additional factors considered by the court that the relocating party must be prepared to lead evidence on, namely:

1. a court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.
2. there can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interest of the children or the best interest of the children might dictate that they commence school at a new location.
3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

see Plumley v. Plumley, [1999] O.J. No. 3234 (Ont. S.C.)

Conclusion

Relocating with a child during or after a separation can be a complex and emotionally challenging process.  It is essential that this issue is navigated carefully.  If you are considering relocating with a child, please contact Sydney Archibald at sydney@sorbaralaw.com for advice.