In most cases, a parent who wishes to move to a new residence with a child will be required to provide notice of the proposed move to the other parent. This notice is intended to be informational and is an important part of the process as any move can be disruptive to a child and their relationships. A move may constitute a “relocation” when it significantly impacts a child’s relationship with the other parent. 

Whether a move significantly impacts a child’s relationship with the non-moving parent depends on the circumstances. Courts generally discourage unilateral changes to a child’s residence and strive to ensure that any move or relocation is consistent with the child’s best interests. 

Mother Makes Unilateral Decision to Move Child From Mississauga to Toronto

The Children’s Law Reform Act (the “CLRA”) outlines the notice requirement for parents to follow when a child’s residence is changed.

In Doan v. Tran, the Ontario Court of Justice was required to determine what should happen when one parent makes a unilateral decision regarding the child’s primary residence which would significantly impact the status quo. In this case, the mother unilaterally changed the residence of the parties’ child from Mississauga to Toronto. The mother claimed that she gave the father notice of her move and that the parenting schedule would remain unchanged, except for the location of drop-offs changing. 

Justice Cleghorn rejected this argument, finding that the mother knew the child’s move to Toronto would require changing schools, and further, that the existing parenting schedule could not be followed because of the distance between the parties’ homes. The Court held that the mother did not comply with the notice requirements and made a unilateral decision without considering how the move would impact the child’s relationship with her father. Specifically, the mother failed to appreciate that the move would significantly change the parenting schedule, allowing both parents to be involved in all aspects of their daughter’s life. 

Child’s Best Interests at Odds with a Change in Residence 

In his argument against the relocation, the father cited several cases which provided commentary on unilateral decision-making. The case of Fallis v. Decker involved a situation where the mother had already relocated which had altered the status quo. The judge in this instance noted that “of all the considerations, the suggestion that “it’s too late to change things now” has to be given the least weight. Parents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized”. The Court went on to warn that it is inappropriate for a parent to make secret plans which would impact the children’s parenting arrangements and to announce such plans after the changes have been made.

Likewise, in the case of Guertin v. Dumas, the mother had unilaterally decided to change which school the child attended, and was found to have failed to respect the letter and spirit of the parenting order. The obligation to “jointly parent” required the parties to make decisions together, however, this was disregarded by the mother. 

Consequently, in Doan v. Tran, the mother’s actions could not be condoned. The Court held that maintaining her primary residence with her father in a community she already knew was in the child’s interests. 

Is Every Move a Relocation?

Moving to a new residence can be disruptive to parents and their children. However, not every move will significantly change the parenting status quo. In the case of S.C. v. J.C., the Court considered the meaning of relocation, as the mother proposed that the matter was not a“relocation” but rather a “change in residence”. Here, the mother wanted to move the children’s residence from Orillia to Midland and alleged that the change would not result in any change to the father’s parenting time, given that he resided in Barrie. In her view, the change in residence would not impact his relationship with the children. 

Section 18(1) of the CLRA defines a “relocation” as:

 “A change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with:

1. another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, or
2. a person who has contact with respect to the child under a contact order.”

The CLRA states that the party seeking a change in residence must communicate this intention to the other party before taking action. This requires the moving parent to notify the other parents at least 60 days in advance of the date on which the change is anticipated to occur. Further, section 39.3 of the CLRA requires the notice to be made in writing with:

• the date for the proposed relocation;
• the address of the new residence and appropriate contact information; and
• a proposal for how decision-making responsibility, parenting time or contact could be exercised. 

Moves that Impact a Parent’s Relationship with a Child are Decisive

In S.C. v. J.C., the judge found that a “change in residence” referred to a “move that is not significant to the other parent or party within the meaning of section 18(1) of the CLRA”. However, the significance of a move will be assessed on a case-by-case basis. Ultimately, the judge determined that if a move is not considered a relocation under the CLRA, then it must be a “change in residence.” 

In this case, the father had resided in Barrie for many years and acknowledged that the mother’s move would not significantly impact his parenting time or his relationship with the children. For the Court, this admission strongly indicated that the move was not a relocation. Further, the Court determined that a mere change to the children’s school and community would not necessarily make the move a relocation. 

Due to the father’s inability to provide the Court with any evidence as to how the move would affect his relationship with the child, the move was deemed to be a change of residence. The Court held that because the mother provided the father with the child’s new address and proposed date to move, she had complied with the CLRA’s notice requirement. 

Stability of Housing as a Consideration

Courts have also acknowledged that some parents may face housing challenges and have noted that in some cases, obtaining secure housing is a legitimate consideration justifying a move.

In Lawrence v. Khan, the mother moved from Brampton to Orangeville, allowing her to obtain secure and stable housing for herself and her daughter. Prior to the move, the mother had been spending one half of her income on housing, therefore, the move was expected to provide her with room in her budget for other needs. 

The Court found that this was a proper consideration when evaluating the move. The Court also took judicial notice of the fact that obtaining housing for modest income earners was becoming a burden across the Greater Toronto Area. While the move did impact the parenting arrangement regarding which days the father could spend with the child, it did not materially interfere with parenting time or any other aspect of this relationship. In this case, a new parenting schedule was created to reflect changes to parenting time.

The Family Lawyers at NULaw in Toronto Help Clients Navigate Issues Relating to a Child’s Relocation

The experienced family lawyers at NULaw in Toronto help parents navigate the processes involved when seeking to move with a child. We also ensure that clients comply with the applicable requirements. With extensive knowledge of provincial and federal family law issues, we provide clients with comprehensive and practical advice relating to post-divorce modifications and issues relating to access and parenting time so that they can make informed decisions. To speak with a member of our family law team, contact us online or at 416-481-5604.