A parent’s decision to relocate with a child following separation can give rise to complex legal issues. The law recognizes that such a move may significantly affect a child’s relationship with the other parent. Understanding the legal framework governing relocations can help parents make informed and thoughtful decisions.
What is a Relocation?
A relocation is more usually than a mere change of address in the same city, although it may be depending on the circumstances. More commonly, however, it is a move that may negatively impact the other parent’s relationship with the child. For example, if both parents currently reside within Sudbury, a move by one parent outside of the City of Greater Sudbury would generally be considered a relocation, as it would affect parenting time, travel arrangements, and the child’s ongoing relationship with the non-moving parent.
In addition, a relocation may impact the child in unforeseen ways such as the loss of the child’s current social circle, ability to participate in their usual extracurricular activities, a change in school, etc. The court is cognizant of these impacts and remains focused on the best interests of the child.
The Requirement to Give Notice
Under both the Divorce Act and the Children’s Law Reform Act, a parent who has parenting time (formerly known as access) or decision-making responsibility (formerly known as custody) and intends to relocate must provide advance notice to any parent who has parenting time, decision-making responsibility, or contact with the child pursuant to a court order or separation agreement. Notice must be provided at least 60 days before the intended move.[1]
The notice must set out the following:
- the expected date of the relocation;
- the address of the new place of residence and contact information of the person or child, as the case may be;
- a proposal outlining how parenting time, decision-making responsibility, or contact would be exercised after the move; and,
- any other information prescribed by the regulations.[2]
Notice should be provided regardless of whether you have a court order or separation agreement setting out parenting time or contact.
In situations where there is a risk of family violence, the court may modify or waive the notice requirement to protect the safety of the parent or child. [3]
Once notice is provided, the relocating parent may proceed with the move only if the relocation is authorized by the court or if the non-relocating parent does not object within 30 days of receiving the notice. Any objection must be made in writing or by bringing an application to the court. [4]
Where a relocation occurs without giving proper notice, the court may order the parent to return the child to jurisdiction from which they moved.
The Test for Relocation
When a relocation is disputed, the court must determine whether the proposed move is in the best interests of the child.
If the parents spend substantially equal parenting time with the child, the relocating parent bears the burden of proving that the relocation is in the child’s best interests.[5] Conversely, if the child resides primarily with the relocating parent, the non-relocating parent bears the burden of proving that the move would not be in the child’s best interests.[6]
In Barendregt v Grebliunas, the Supreme Court of Canada emphasized that the question is whether the relocation is in the best interests of the child, having regard to their physical, emotional and psychological safety, security and well-being. The analysis is highly fact-specific and discretionary.
All factors related to the circumstances of the child should be considered, which may include their views and preferences, incidents of family violence, the history of caregiving, and their cultural, linguistic, religious and spiritual upbringing and heritage. Moreover, the court must consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent. The child should have as much time with each parent as is consistent with the child’s best interests.[7]
Additionally, the court will take the following factors into consideration:
- 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;
- 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 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,
- 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 family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.[8]
Relocation issues require courts to balance a parent’s mobility with a child’s need for stability and meaningful relationships with both parents. Since these matters are highly fact-specific and time-sensitive, early legal advice is critical. Understanding your obligations, the notice requirements, and the legal test applied by courts can make a significant difference in the outcome. If you are facing a potential relocation dispute, consulting with an experienced family lawyer can help you navigate the process with confidence and clarity.
At Northern Law LLP, we understand the stress and uncertainty that parents face when relocation becomes an issue. Whether you are considering a move or responding to a proposed relocation, our experienced family law team can provide clear guidance, practical advice, and strong advocacy. We work closely with our clients to protect their parental rights while keeping the focus where it belongs — on the best interests of their children. Northern Law LLP is happy to offer experienced counsel to assist you. Contact us today at (705) 222-0111 or info@northernlaw.ca.
[1] Subsection 16.9(1) of the Divorce Act, RSC 1985, c 3 (2nd Supp) [Divorce Act].
Subsections 39.2 (1) and (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 [Children’s Law Reform
Act] .
[2] Subsection 16.9(2) of the Divorce Act.
[3] Subsection 16.9(3) of the Divorce Act.
Subsection 39.2 (3) of the Children’s Law Reform Act.
[4] Subsection 16.91(1) of the Divorce Act.
Subsection 39.4(2) of the Children’s Law Reform Act.
[5] Subsection 16.93(1) of the Divorce Act.
Subsection 39.4(5) of the Children’s Law Reform Act.
[6] Subsection 16.93(2) of the Divorce Act.
Subsection 39.4(6) of the Children’s Law Reform Act.
[7] Barendregt v. Grebliunas, 2022 SCC 22 (CanLII), [2022] 1 SCR 517.
[8] Subsection 16.92(1) of the Divorce Act.
Subsection 39.4(3) of the Children’s Law Reform Act.