RELOCATION IN PARENTING (CUSTODY AND ACCESS) CASES IN ONTARIO

Navigating the waters of family law can be complex and emotional, especially when it involves the well-being of children. For parents in Ontario contemplating relocation or faced with opposing relocation, there is much to learn. In this blog post, we will explore some of the intricacies of relocation laws in Ontario, highlighting some factors that the courts consider, and offering invaluable tips to parents facing this situation.

Statutory Framework

Ontario’s legal framework for relocation aims to prioritize the best interests of the child while ostensibly respecting the rights of both parents. The amended laws now require the relocating parent to formally notify the other parent of the intent to move, providing comprehensive details about the proposed new location and plans for maintaining the child’s relationship with the non-relocating parent

Family law in Ontario has provincial legislation (Children’s Law Reform Act) that applies.  But where divorce is an issue, then the federal legislation (Divorce Act) applies. Amendments to these statutes came into effect on both levels on 1 March 2021. For divorce cases, we have reference to the Divorce Act, sections 16.8, 16.9, 16.9, 16.92, 16.93, 16.94, 16.95 and 16.96.  Where divorce is not an issue, the Ontario Children’s Law Reform Act applies – sections 39.1, 39.2, 39.3 and 39.4.  Both the federal and provincial statutes contain identical and almost identical provisions.  There is likely little difference between the two.  In this blog post, we will reference the Ontario statute.

Definition and Legal Ramifications

Section 39.1(1) obligates a parent to notify the other about a mere change in residence.  But then section 39.3 obligates greater responsibilities on a parent who intends to relocate.  The definition section of the statute does not define “change of residence” or “relocation”.  It is best to seek out legal advice.  If the move is going to have a “significant impact on the child’s relationship with the person”, then you are best advised to go with the more stringent requirements.  And out of an abundance of caution, do not think that what you view as a mere ‘change in residence’ will also be seen as only that as opposed to a wholescale ‘relocation’.

Vast Majority of the Time:

The burden of proof or ‘onus’ sometimes changes depending upon the circumstances.  If one parent has an order or agreement that stipulates that the child spends “the vast majority of time in the care of the party who intends to relocate the child”, then in that case the parent with the minimal amount of time “has the burden of proving that the relocation would not be in the best interests of the child.”  [s. 39.4(6)]  That’s a rather severe reverse onus provision!

This provision implies that when you first negotiate a parenting regime where you don’t get all that much time, at least include a notice provision and an onus provision that does not handicap you right out of the gate.  Don’t stick yourself with having to later overcome an onerous burden of proof provision.

Some Factors Considered in Relocation Cases [s. 39.4(3)]

Several crucial factors come into play when courts decide on relocation cases, including:

• Reasons for the relocation;
• Impact of relocation on child;
• The extent of compliance with the terms of an existing order or agreement and the likelihood of future compliance;
• Best Interests of the Child: Central to relocation decisions is the child’s welfare, with courts assessing the potential impact of the move on their emotional, educational, and social well-being.   S. 39.4(3) directs us to “best interests” as defined in section 24 and section 24 includes a very wide variety of factors indeed.

Legal Process for Relocation 

Navigating the legal protocol is essential for any parent contemplating relocation or resisting relocation:

• Give Notice: The relocating parent must give at least 60 days advance notice of the intended move.  That notice must be on the prescribed form and contain various particulars: move date; new address; proposal for readjustment of decision-making responsibility and parenting time.
• Objection to the Notice:  The recipient of the notice must also respond in detail within 30 days.
• If no response: If there is no response to the notice, then assuming there is nothing in the current court order or agreement that prohibits relocation, then the first parent can move.
• If there is a response: If there is a response, then the first parent must seek court permission.

Challenges and Recommendations

We have pointed out above that the section 24 “best interests” test still reigns supreme, albeit somewhat modified by relocation factors enumerated in s. 39.4(3).  The notice requirements are important.  The response requirements are crucial.  Note that there are statutory exceptions to much of what I have written here.  Whether you are proposing to relocate or opposing relocation, it’s not something that you should lightly take on all on your lonesome.  A family law lawyer who is familiar with the legislation and caselaw can actually help you navigate all this.

Importance of Interim Motions

These relocation requests are most often decided at interim motions.  Usually, the court decides interim motions based only on affidavits.  If the court decides that relocation is to be permitted at this stage, that pretty much seals your fate, as it is highly unlikely that a trial court will force a move back to the original jurisdiction many months later.

In a recent case at our firm (at least “recent” as of the date of writing this blog post), we were counsel for a dad of an 8-year-old son.  Both parents were living in Toronto.  Dad was not able to drive. Mom gave notice under the CLRA of her intended move to Guelph.  The judge summed up the key reasons for the proposed move:

They wish to move to Guelph because they can live rent free with her partner’s parents there, enabling them to save money and buy a home eventually, most likely also in Guelph, which she says they cannot afford to do in Toronto. She offers to do all the driving for the respondent father’s alternate weekend parenting time, and to add extra time during the summer to make for having to change his weekly Wednesday visits to zoom.

This mom already had the vast majority of the time and that was one mark against the father.  The motion was in December 2023.  The court noted that the next trial sittings would be in mid-April and then in July.  The judge was not convinced that the order had to be made here and now.  Her Honour concluded that the mom “has not demonstrated a compelling reason to permit the move to Guelph on an interim basis as it is unlikely a trial judge would move the child back. … While the mother may be successful at trial, there is not a “strong possibility” that she will prevail.”  Motion dismissed!

Of course, our client was elated.  But then imagine his utter joy when the mom then withdrew her request to relocate.

The point of this story is this: With strategizing, with diligent preparation, with effective advocacy both written and oral, it is possible to keep parents and their kids together.  A knowledgeable family law lawyer will not guarantee success, but it will maximize your chances.

Conclusion

Remember, when it comes to family law and relocation, knowledge is power, and seeking early legal counsel can make all the difference.