Sometimes a parent wishes to relocate with a child, for example, to be closer to family or to take up a job somewhere else. This can be a difficult situation as it might make it more difficult for the other parent to have a relationship with the child. It may be necessary to seek a post-separation/divorce modification to an agreement or court order in order to facilitate relocation.

What is relocation?

Under the Ontario Children’s Law Reform Act and the Canadian Divorce Act, a relocation refers to a change in residence of a child or a person who has (or seeks) decision-making responsibility or parenting time with regard to the child, that is likely to have a significant impact on the child’s relationship with a person who has such responsibility or parenting time.

If the parents cannot agree on whether relocation should be permitted, the parent seeking to relocate can notify the other of their intention to relocate. Under the legislation, this notice needs to contain certain matters, and it sets off a formal process. The other parent may object to the relocation, in which case the court will decide whether to authorize the relocation.

How does the court decide whether to authorize the relocation?

When an Ontario court makes a parenting order, the court takes into account the best interests of the child. In determining the child’s best interests, the court shall consider all factors related to the circumstances of the child and shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

Who bears the burden of proof?

Where the child spends substantially equal time in the care of each parent, the parent who intends to relocate the child has the burden of proving that the relocation would be in the child’s best interests. However, this changes if the child spends the vast majority of their time in the care of the parent who intends to relocate. In this case, the parent opposing relocation needs to prove that the relocation would not be in the child’s best interests. In any other case, the parties have the burden of proving whether relocation is in the child’s best interests.

What else does the court take into consideration?

In addition to the normal assessment of a child’s best interests, the legislation sets out seven additional factors for the court to take into consideration in the context of relocation. These include:

• 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 and the level of involvement in the child’s life of each person;
• Whether the parent who intends to relocate has complied with the notice requirements, court order, arbitral award or 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 of the relocating parent to vary the exercise of parenting time and decision-making responsibility, taking into consideration the location of the new place of residence and travel expenses; and
• Whether each person with parenting time or decision-making responsibility has complied with their obligations, and the likelihood of future compliance.

The legislation also requires the court to give effect to the principle that a child is to have maximum contact with each parent, consistent with the child’s best interests.

A recent example where the court declined to authorize relocation

In the recent case of Marshall v Marshall, the mother sought an interim order permitting her to move from Beachville to Sarnia with her six-year-old daughter. She proposed parenting time on alternate weekends with the father, along with two weekday after-school visits. The mother proposed to relocate because she had been offered a promotion at work, which she said required her to move. Her parents live in Sarnia.

The father opposed the move and proposed a shared care parenting arrangement on a four-day rotating schedule. Justice Rady of the Superior Court of Justice of Ontario sided with the father and declined to make a temporary order permitting relocation.

Her Honour cited previous cases that stood for the proposition that, only in exceptional cases, relocation issues could be decided at the motion stage. It is difficult to complete the extensive child-focused inquiry, which is subject to conflicting evidence, at this early stage of the proceeding. It would need to be plain and obvious that relocation ought to be permitted or denied.

Justice Rady considered that this was not such a case and ordered that any relocation claims be adjourned to trial. Her Honour observed that the information about the mother’s employment opportunity was thin. In particular, it wasn’t clear that she needed to be physically based in Sarnia given the company operates in large parts of Southwestern Ontario and that many employees are encouraged to work remotely. Furthermore, the mother’s proposal would move the child from the only home she has known, away from her paternal relatives, away from her school and her friends. Importantly, the move would also substantially disrupt the parenting time that the father could have.

Contact NULaw in Toronto for Advice on Post-Separation and Post-Divorce Modifications

Child relocation after separation or divorce is complex. It is often important to consider many issues, such as how your child will spend time with the other parent. We recommend consulting with the experienced family lawyers at NULaw in Toronto, so you can understand the legal process and the evidence that will assist you.

NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters including custody and access, and modifying agreements or orders. Contact us online or at 416-481-5604 to book a consultation.