Moving Within Ontario With Your Child Without the Other Parent's Consent

You have a job, a family home or a fresh start waiting a few hours away, and the other parent does not agree. You may be wondering whether you can simply go, or whether you need a judge's permission first. The answer depends on how far the move affects the child's time with the other parent, and on what any order or agreement already says.

This article explains the notice rules, the 60-day and 30-day time limits, and how a court decides a contested move. It is general information, and a move involving a child is worth discussing with a family lawyer before you sign a lease or list your home.

Two laws, parallel rules

The federal Divorce Act governs parenting between married spouses. The Children's Law Reform Act (CLRA) deals with parenting for unmarried parents and for married parents who are not divorcing. The notice and relocation sections of the two laws are parallel but numbered separately, and they work in much the same way.

Under the CLRA, parents of a child have an equal right to decision-making responsibility, whether or not they were ever married. If the parents live apart and the child lives with one of them with the other's consent, the other parent's right to exercise decision-making responsibility is suspended until a separation agreement or court order says otherwise, though their parenting time is not suspended.

Written notice of any change of residence

A person with decision-making responsibility or parenting time who plans to change residence must notify everyone else who has decision-making responsibility, parenting time or contact. The notice must be in writing. This applies even to a move that does not turn out to be a relocation, so a short move across town still calls for notice.

Check any existing order or separation agreement as well. A parenting order can include conditions that stop a party from changing the child's residence, school or day care without consent or a court order.

Is a few hours' distance a relocation?

A relocation is a move that is likely to significantly affect the child's relationship with a person who has parenting time, decision-making responsibility or contact. There is no set number of kilometres in that definition. A move of a few hours may be a relocation if it makes weekly or midweek time hard to keep up, and it may not be if the existing schedule can continue without much change.

If it is a relocation, notice must be given at least 60 days before the expected move date, in the prescribed form. The notice must include a proposal for how parenting time, decision-making and contact would work after the move.

• Does the current schedule include school-week time with the other parent?
• Could the schedule be kept or adjusted, for example with longer blocks on weekends and holidays?
• Does anyone else, such as a grandparent with a contact order, see the child regularly?
• Would travel time make the current exchanges unrealistic?

Objections and what the court decides

The other party may object within 30 days of receiving the notice. Under the Divorce Act, they do this on the prescribed objection form or by bringing an application. A relocation may go ahead on the notice date only if a court authorizes it, or if no objection is made within 30 days and no order prohibits the move. If there is an objection, the child cannot move without a court order.

In deciding whether to allow a relocation, the court considers the child's best interests plus other factors, including the reasons for the move, its impact on the child, and whether the moving party followed the notice requirements. The court must not consider whether the parent would move without the child if the move were refused.

For an interim order, the court may decide not to apply those burden-of-proof rules. If a relocation is authorized, the court may divide the costs of exercising parenting time, such as travel, between the parties.

Exceptions and special cases

Where there is a risk of family violence, a court may, on application, waive or modify the relocation notice requirements. If that is your situation, get legal advice before you move rather than after.

A parent moving alone is different. The Divorce Act gives no way to object to a parent moving without the child. The rules discussed here concern the child's move.

What to do next

• Read your current order or separation agreement for residence, school and travel conditions.
• Work out how the child's time with the other parent could realistically continue after the move.
• Prepare a written notice with a concrete proposal, and keep proof of when and how it was delivered.
• Note the 60-day and 30-day dates on a calendar.
• If you have been told there is an objection, do not move the child without a court order.
• Speak with a family lawyer early, especially if there is any safety concern or an urgent deadline.

Frequently asked questions