Can I Move Away With the Kids After Separation in Ontario?

Separation often changes where you can afford to live, where your work is, or where your family support is. If you share parenting with the other parent, moving a child is not the same as moving yourself. There are notice rules, a chance for the other parent to object, and a court process if you cannot agree.

This article explains the general rules in plain language. It focuses on the federal Divorce Act, which applies to parents who are or were married, and says a little about parents who were never married. Every family is different, so use this as a starting point and get advice on your own situation before you act.

Which law applies to your move?

The Divorce Act relocation rules apply to parents who are, or were, married and who have a Divorce Act order. Parents who were never married are governed by Ontario's Children's Law Reform Act.

Ontario court forms include a Notice of Relocation form under the Children's Law Reform Act, hosted on the Ontario court forms website. Exactly how the never-married rules line up with the Divorce Act rules described below is worth confirming with a lawyer before you rely on them.

Giving notice of the move

A person who has parenting time or decision-making responsibility and intends to relocate a child must give notice at least 60 days before the expected date of the move. The notice goes to everyone with parenting time, decision-making responsibility, or contact under a contact order.

The notice has required content. It must state the expected move date, the new address and contact information, and a proposal for how parenting time, decision-making responsibility or contact could continue after the move. It may also need other prescribed information.

• The date you expect to move
• Your new address and contact information
• A proposal for how parenting time, decision-making responsibility or contact could continue after the move
• Notice going to everyone with parenting time, decision-making responsibility or contact under a contact order

A court can change or waive the notice requirements on application, including where there is a risk of family violence. That application may be made without notice to the other party. If safety is a concern, speak to a lawyer or a support service before sending anything.

Consent, objection and what happens next

After notice is given, you may relocate the child on the date in the notice if a court authorizes the move, or if the other person with parenting time or decision-making responsibility does not object within 30 days of receiving the notice and no order prohibits the relocation.

An objection is made by the prescribed form or by a court application. The objection form must say that the person objects, give the reasons, and set out their views on the plan in your notice. Only a person with parenting responsibilities can object.

If you agree on the move, it is still sensible to put the agreement in writing and ask a lawyer whether it should be made into a court order.

How a court decides a relocation

In deciding whether to authorize a relocation, the court considers the child's best-interests factors and several relocation-specific points. These include the reasons for the move, its impact on the child, the time each person has spent with the child and their involvement, and whether the relocating person complied with the notice requirements.

• Whether an existing order or agreement already sets the geographic area where the child must live
• Whether the proposal to adjust parenting time or contact is reasonable, including location and travel costs
• Each person's compliance with their family law obligations

If the relocation was prohibited, the court cannot consider whether the person would relocate without the child or not relocate at all.

Who has to prove what

The burden of proof depends on the existing arrangement. Where the parties substantially comply with an order or agreement giving substantially equal time, the party who intends to relocate must prove the move is in the child's best interests.

Where the child spends the vast majority of time with the relocating party, the party opposing the move must prove it is not in the child's best interests. In any other case, both parties have the burden. On an interim order, the court may decline to apply these burden-of-proof rules.

What to do next

Before you commit to a lease, a job or a school, work out where you stand. Gather your current order or agreement, a record of who has cared for the child, and a concrete plan for the child's school, housing and contact with the other parent.

• Read your order or agreement for any limit on where the child may live
• Count the days: notice must be given at least 60 days before the move
• Draft a realistic parenting-time proposal with travel costs and logistics
• Keep copies of the notice and proof of delivery
• Speak to a family lawyer early, especially if you expect an objection

Frequently asked questions