Relocating with Children After Divorce: Legal Considerations in Ontario

Understanding Custody and Access Rights in Toronto

Relocating after a divorce can be a challenging and emotional process, especially when children are involved. In Ontario, specific legal considerations must be taken into account when one parent intends to move with their children. The Family Law Act and Divorce Act outline these considerations to ensure the relocation is in the child’s best interests and that the rights of both parents are respected. Understanding custody and access rights is essential when making these decisions.

Types of Custody in Ontario

1. Sole Custody: One parent has full legal decision-making authority for the child. While the non-custodial parent may have access (visitation) rights, the custodial parent has the right to make major decisions about the child’s life, including education, health care, and residence.
2. Joint Custody: Both parents share legal decision-making authority, even if the child primarily lives with one parent. Major decisions must be made jointly, and relocation typically requires agreement from both parents or a court order.
3. Shared Custody: The child lives with each parent at least 40% of the time. Both parents are involved in day-to-day decision-making. Relocation in shared custody situations can be particularly complex, as both parents have significant involvement in the child’s upbringing.
4. Split Custody: When there are multiple children, each parent has custody of at least one child. Relocation may need to be considered separately for each child in this arrangement.

Impact of Custody Agreements on Relocation Decisions

Custody agreements play a significant role in whether a parent can relocate with a child. In Ontario, the legal process for relocation is influenced by the type of custody arrangement and the specific terms outlined in the agreement or court order.

1. Relocation with Sole Custody

If you have sole custody of your child, you still cannot relocate unilaterally. You must provide 60 days’ written notice to the other parent, detailing the proposed move, including the new address and the date of relocation. The non-custodial parent has the right to object to the move, and if they do, the court will assess the relocation’s impact on the child’s best interests.

2. Relocation with Joint or Shared Custody

In joint or shared custody situations, relocation is more complex. Because both parents have decision-making rights, any significant move typically requires the consent of the other parent or a court order. If one parent objects to the relocation, the matter will likely be settled in court. The relocating parent must demonstrate that the move is in the child’s best interests.

3. Best Interests of the Child Standard

In all cases, Ontario courts prioritize the child’s best interests when determining whether to approve a relocation. Factors considered include:

• The reason for the relocation (e.g., employment, family support).
• The impact on the child’s relationship with the non-moving parent.
• The child’s social and educational stability.
• The ability to maintain meaningful contact with both parents.
• The views of the child, depending on their age and maturity.

 

Legal Framework for Relocation in Ontario

Relocating with children after a divorce in Ontario is governed by strict legal provisions to protect the best interests of the child and the rights of both parents. Understanding the relevant statutes and the procedures involved is crucial for parents considering relocation.

Family Law Act and Divorce Act Provisions Related to Relocation

In Ontario, relocation is addressed under both the Family Law Act (FLA) and the Divorce Act (federal legislation). Each statute applies in different circumstances but shares the same guiding principle: the best interests of the child.

1. Divorce Act (Federal Law)
   The Divorce Act governs married couples who are legally divorcing or divorced. In March 2021, significant amendments to the Divorce Act were introduced to clarify relocation provisions. According to Section 16.9 of the Divorce Act:

1. • The parent planning to relocate must give at least 60 days’ written notice to the other parent.
   • The notice must include the move date, the new address, and a revised parenting plan (if applicable).
   • If the other parent objects to the relocation, they have 30 days to file an objection with the court.

2. Family Law Act (Provincial Law)
   The Family Law Act applies to unmarried couples or married couples who are separated but not divorced. Similar principles regarding relocation and the best interests of the child apply. Parents with custody or access rights must follow similar notification and objection procedures to ensure that their relocation is lawful.

Both statutes emphasize the importance of maintaining the child’s stability and preserving meaningful relationships with both parents.

 

The Need for Court Approval When One Parent Objects to Relocation

If one parent objects to the proposed relocation, the matter may proceed to court. The court evaluates the relocation request based on the best interests of the child. Factors considered include:

1. Parent-Child Relationships

1. • The strength and quality of the child’s relationship with each parent.
   • The impact of the relocation on the child’s ability to maintain a meaningful relationship with the non-relocating parent.

2. Child’s Well-being

1. • The emotional, educational, and social effects of the move on the child.
   • The child’s views and preferences (depending on their age and maturity).

3. Reasons for Relocation

1. • Whether the move is being proposed for valid reasons (e.g., employment opportunities, better support system).
   • Whether the relocating parent has a plan to facilitate ongoing contact with the other parent.

4. Feasibility of Revised Parenting Plans

1. • The ability to create a new parenting schedule that ensures ongoing access for the non-relocating parent.
   • The financial and logistical challenges associated with maintaining regular contact.

The parent seeking to relocate must convince the court that the move serves the child’s best interests. Conversely, the objecting parent may argue that the relocation would negatively impact the child’s well-being.

 

Key Factors Courts Consider for Relocation Requests

When a parent wishes to relocate with their child after a divorce or separation, Ontario courts carefully evaluate whether the move aligns with the child’s best interests. Under the Divorce Act and Family Law Act, courts follow strict guidelines to ensure that the relocation does not adversely impact the child’s well-being. Here are the key factors courts consider when assessing relocation requests:

The Child’s Best Interests

The primary consideration for any relocation decision is the best interests of the child. Courts take a holistic view, focusing on how the move will affect the child’s physical, emotional, and psychological well-being. Factors include:

• Stability and Continuity: The court evaluates whether the relocation will provide a stable environment and avoid unnecessary disruption to the child’s education, friendships, and daily routines.
• Child’s Wishes: Depending on the child’s age and maturity, their views and preferences may be taken into account.
• Health and Safety: The physical and mental health of the child and the relocating parent is also assessed to determine if the move will benefit or harm the child’s overall welfare.

 

Impact on the Child’s Relationship with the Other Parent

Courts are mindful of maintaining the child’s meaningful relationship with both parents. When evaluating a relocation request, they consider:

• Frequency of Contact: How the move will affect regular parenting time and the non-relocating parent’s ability to spend quality time with the child.
• Parental Involvement: Whether the relocation will diminish the non-relocating parent’s involvement in the child’s life (e.g., participation in school events, extracurricular activities, and day-to-day parenting).
• Efforts to Facilitate Contact: The court examines whether the relocating parent has a realistic plan to support ongoing communication and visits with the other parent. This may include virtual visits, travel arrangements, or modified parenting schedules.

If the move is likely to undermine the child’s bond with the non-relocating parent, the court may deny the relocation request.

Proposed Parenting Plan and Quality of Life in the New Location

The relocating parent must present a detailed parenting plan that outlines how they intend to maintain the child’s relationship with the non-relocating parent. The quality of life in the proposed new location is also scrutinized. The court will assess:

• New Opportunities:

• • Access to better educational programs, healthcare services, and extracurricular activities.
  • Proximity to extended family or a support network that benefits the child.

• Parental Capacity:

• • The relocating parent’s ability to provide a nurturing and stable home environment.
  • Employment prospects or financial stability in the new location.

• Feasibility of New Parenting Schedule:

• • How practical the revised access schedule is for the non-relocating parent.
  • The cost, travel time, and logistics associated with maintaining regular contact.

 

Notification Requirements for Relocation

When a parent plans to relocate with their child after a divorce or separation, they are legally obligated to notify the other parent. The notification process ensures transparency, allows the non-relocating parent to respond, and protects the child’s best interests. In Ontario, the Divorce Act (for divorced or divorcing parents) and the Family Law Act (for non-married or separated parents) outline specific procedures and timelines for providing notice.

Legal Obligations to Notify the Other Parent

Relocating with a child is not a decision that can be made unilaterally. The law requires the relocating parent to provide formal notice to the non-relocating parent, ensuring they are aware of the move and its potential impact on custody and access arrangements.

Key obligations include:

1. Written Notice:
   The relocating parent must deliver a written notice to the other parent. This notice must clearly state:

1. • The intended relocation date.
   • The new address and contact information.
   • A proposed revised parenting plan that outlines any changes to custody, access, or visitation arrangements.

2. Clarity and Transparency:
   The notice should be clear, detailed, and include enough information to allow the non-relocating parent to understand the implications of the move and respond appropriately.

 

Timelines and Formalities for Providing Notice

The notification process in Ontario follows strict timelines and procedural requirements to ensure fairness and adequate preparation time for both parents.

1. 60-Day Notice Requirement

1. • The relocating parent must provide at least 60 days’ written notice before the planned relocation date. This gives the non-relocating parent time to consider the move, seek legal advice, and decide whether to consent or object.
   • The 60-day notice period is mandated by the Divorce Act for divorced or divorcing parents. A similar requirement applies under the Family Law Act for non-married or separated parents.

2. Delivery of Notice

1. • The notice should be delivered in a way that ensures it is received by the non-relocating parent. Acceptable methods typically include:
     • Registered mail with a tracking number.
     • Email (if email communication is commonly used between the parents).
     • Personal delivery with confirmation of receipt.

3. Non-Compliance Consequences

1. • Failure to provide proper notice may result in legal consequences, including court orders preventing the relocation or modifying custody and access arrangements.

Disputes Over Relocation: Legal Steps

Relocating with a child after a divorce or separation can be a contentious issue. If the other parent contests the move, specific legal steps must be followed to resolve the dispute. In Ontario, the Divorce Act (for married and divorced parents) and the Family Law Act (for unmarried or separated parents) provide guidelines for managing these disputes. Understanding the process can help parents navigate this challenging situation effectively.

 

What to Do if the Other Parent Contests the Move

If the non-relocating parent objects to the proposed relocation, the following steps should be taken:

1. File an Objection

1. • The non-relocating parent has 30 days from receiving the relocation notice to file a formal objection with the court.
   • The objection must be in writing and clearly state the reasons for opposing the relocation, including concerns about the impact on the child’s well-being and the parent-child relationship.

2. Attempt Mediation or Negotiation

1. • Before escalating to court, parents may try to resolve the dispute through:
     • Mediation: A neutral third party helps facilitate an agreement that works for both parents.
     • Collaborative Family Law: Lawyers representing each parent work together to reach a resolution without litigation.
   • These approaches can help avoid the stress and expense of a court battle.

3. Prepare for Court Proceedings

1. • If mediation or negotiation fails, the dispute will be decided in court. Both parents should gather relevant documents, such as:
     • The written relocation notice.
     • The objection and reasons for contesting the move.
     • Evidence supporting their position, such as expert reports, school records, and testimony about the child’s best interests.

4. Seek Legal Representation

1. • Engaging an experienced divorce lawyer is crucial to navigating the legal complexities of a relocation dispute. A lawyer can present a compelling case and ensure your rights are protected.

 

How the Court Resolves Relocation Disputes

When a relocation dispute reaches court, the judge’s decision is guided by the best interests of the child. The court carefully examines several factors to determine whether the relocation should be allowed. These factors include:

1. Impact on the Child’s Well-Being

1. • How the move will affect the child’s emotional, educational, and social stability.
   • Whether the relocation will provide better opportunities for the child (e.g., improved schooling, healthcare, or support network).

2. Child’s Relationship with Each Parent

1. • The quality and strength of the child’s bond with both parents.
   • The potential disruption to the non-relocating parent’s ability to maintain a meaningful relationship with the child.

3. Reasons for the Relocation

1. • The relocating parent’s motives for the move (e.g., job opportunities, family support, or improved living conditions).
   • Whether the move is made in good faith or intended to interfere with the other parent’s access rights.

4. Feasibility of New Parenting Arrangements

1. • Whether the relocating parent has a realistic plan to facilitate ongoing contact with the non-relocating parent.
   • The logistical and financial challenges of maintaining a revised access schedule.

5. Child’s Views and Preferences

1. • Depending on the child’s age and maturity, their opinions may influence the court’s decision.

 

How a Divorce Lawyer Can Assist

Relocating with a child after a divorce or separation is a legally complex process that requires careful planning and compliance with Ontario’s family law. A divorce lawyer can be an invaluable asset in navigating the legal requirements, preparing a strong case, and negotiating with the other parent. Here’s how a divorce lawyer can assist you during the relocation process.

Preparing a Relocation Application

A divorce lawyer can help you prepare and file a comprehensive relocation application that complies with the Divorce Act or Family Law Act. This includes:

• Drafting the Notice of Relocation:
  Your lawyer will ensure the notice includes all required information, such as:

• • The intended relocation date.
  • The new address and contact details.
  • A detailed proposed parenting plan outlining how the child’s relationship with the non-relocating parent will be maintained.

• Gathering Evidence:
  Your lawyer will assist in compiling evidence to support your relocation request, including:

• • Employment opportunities or financial stability in the new location.
  • Improved educational or healthcare options for the child.
  • Support networks (e.g., family members) available in the new location.

• Emphasizing the Child’s Best Interests:
  Your lawyer will focus on demonstrating how the relocation benefits the child’s emotional, educational, and social well-being. This is the key factor courts consider when deciding relocation cases.

 

Representing Your Case in Court

If the other parent objects to the relocation and the matter proceeds to court, a divorce lawyer plays a crucial role in advocating for you. Their assistance includes:

• Building a Strong Case:
  Your lawyer will present a well-prepared case with clear arguments and supporting evidence that show how the relocation serves the child’s best interests.
• Courtroom Advocacy:
  An experienced lawyer will effectively argue your case before the judge, addressing:

• • The benefits of the relocation for the child.
  • How the new parenting plan accommodates the non-relocating parent’s relationship with the child.
  • Rebuttals to objections raised by the other parent.

• Navigating Legal Procedures:
  Your lawyer will manage all legal filings, deadlines, and court procedures to ensure everything is done correctly and on time.
• Responding to Challenges:
  If the non-relocating parent raises concerns, your lawyer will address them professionally and present counterarguments backed by evidence.

 

Strategies for Negotiating with the Other Parent

Relocation disputes can be emotionally charged, but resolving them outside of court can save time, stress, and legal costs. A divorce lawyer can employ several strategies to facilitate negotiation:

• Mediation and Alternative Dispute Resolution (ADR):
  Your lawyer can suggest mediation or collaborative family law processes to find mutually agreeable solutions. This often results in more flexible and amicable outcomes compared to court rulings.
• Drafting Settlement Agreements:
  If an agreement is reached, your lawyer can draft a legally binding settlement that outlines the relocation terms and revised parenting plan, ensuring both parties’ rights are protected.
• Offering Compromises:
  Your lawyer may propose compromises, such as:

• • Extended visitation periods for the non-relocating parent.
  • Virtual visits (e.g., video calls) to maintain regular contact.
  • Covering travel expenses for the child to visit the non-relocating parent.

• Communicating Effectively:
  Lawyers can act as intermediaries, reducing tension and ensuring that communication remains focused on the child’s best interests rather than personal conflicts.

 

 

Tips for Successful Relocation After Divorce

Relocating with a child after divorce can be a challenging and emotional process. Ensuring a smooth transition requires careful planning, communication, and attention to your child’s well-being. Here are some practical tips for successful relocation while maintaining compliance with Ontario’s legal requirements.

Documenting Reasons for the Move

Properly documenting the reasons for your relocation is essential for obtaining approval and defending your decision in court if necessary.

• Provide Clear and Valid Reasons:
  Ensure your reasons are legitimate and focused on the best interests of the child. Common reasons include:

• • Employment opportunities that improve financial stability.
  • Access to family support networks in the new location.
  • Better educational or healthcare options for the child.

• Prepare Supporting Evidence:
  Collect documents that support your reasons, such as:

• • Job offers or employment contracts.
  • School enrolment information.
  • Healthcare facility details.
  • Letters from family members in the new location who can provide support.

• Outline Benefits for the Child:
  Clearly demonstrate how the relocation will enhance your child’s well-being, stability, and quality of life.

 

Maintaining Open Communication with the Co-Parent

Maintaining a cooperative and transparent relationship with the co-parent can significantly reduce conflict and increase the likelihood of a successful relocation.

• Provide Early Notice:
  Give the co-parent the required 60-day written notice as per the Divorce Act or Family Law Act. Include all necessary details, such as the move date, new address, and proposed parenting plan.
• Be Transparent About Intentions:
  Clearly explain the reasons for the move and how you plan to support the co-parent’s relationship with the child.
• Discuss and Negotiate:

• • Propose revised parenting schedules to accommodate the move.
  • Offer solutions like virtual visitation, extended holidays, or shared travel costs to maintain regular contact.

• Consider Mediation:
  If direct communication is difficult, mediation can provide a neutral environment to negotiate and reach agreements.

 

How to Support the Child’s Transition

Relocation can be stressful for children, so it’s important to provide emotional support and practical strategies to ease the transition.

• Involve the Child in the Process:

• • Depending on their age, explain the reasons for the move and what they can expect.
  • Allow them to express their feelings and concerns.
  • Involve them in decisions like choosing their new room or exploring new activities in the new community.

• Maintain Routines and Stability:

• • Keep familiar routines as consistent as possible, such as bedtime schedules, schoolwork, and extracurricular activities.
  • Identify opportunities for your child to meet new friends and get involved in the new community.

• Reassure the Child About the Co-Parent Relationship:

• • Emphasize that they will still have regular contact with the other parent.
  • Schedule virtual calls or visits in advance and keep those commitments.

• Support Their Emotional Well-Being:

• • Consider counselling or therapy if your child struggles with the transition.
  • Be patient and attentive to signs of stress or anxiety.

• Stay Positive:

• • Your attitude will influence your child’s outlook. Stay positive about the move and reassure them that everything will be okay.

 

Common Mistakes to Avoid When Relocating

Relocating with a child after divorce in Ontario is a legally sensitive process that requires careful attention to the law, the rights of the co-parent, and the well-being of the child. Mistakes can lead to legal complications, emotional distress, or even court orders preventing the move. Here are some common mistakes to avoid when planning a relocation.

1. Failing to Get Legal Advice

Why It’s a Mistake:
Relocation laws in Ontario are complex, and each case has unique considerations. Without proper legal advice, you risk non-compliance with legislation under the Divorce Act or the Family Law Act, which can jeopardize your relocation plans.

How to Avoid It:

• Consult a Family Lawyer early in the process to understand your rights and obligations.
• A lawyer can help you prepare the notice of relocation, gather evidence, and develop a strategy that demonstrates the move is in your child’s best interests.
• Legal representation is especially crucial if the other parent objects to the move and the case proceeds to court.

 

2. Moving Without Providing Proper Notice

Why It’s a Mistake:
Failing to provide adequate notice to the other parent violates legal requirements and can lead to serious consequences, including the court denying your relocation or modifying custody arrangements.

Legal Requirements:

• Under the Divorce Act, you must provide 60 days’ written notice before the proposed move.
• The notice must include:
  • The relocation date.
  • The new address and contact details.
  • A proposed revised parenting plan.

How to Avoid It:

• Prepare and deliver the notice well in advance using reliable methods like registered mail or email with confirmation of receipt.
• Ensure the notice is detailed and clear to prevent misunderstandings.
• Keep copies of the notice and proof of delivery for your records.

 

3. Ignoring the Child’s Emotional Needs

Why It’s a Mistake:
Relocation can be disruptive and stressful for children, impacting their emotional well-being and stability. Ignoring their feelings can lead to anxiety, resentment, or behavioural issues.

How to Avoid It:

• Communicate Openly:

• • Explain the reasons for the move in an age-appropriate way.
  • Allow your child to ask questions and express their concerns.

• Maintain Stability:

• • Keep routines (e.g., school, activities, bedtime) as consistent as possible.
  • Ensure your child stays connected with friends and familiar support networks.

• Support Ongoing Relationships:

• • Reassure your child that they will continue to have regular contact with the other parent.
  • Facilitate virtual visits and schedule in-person time with the co-parent.

• Consider Counselling:
  If your child struggles emotionally, professional counselling or therapy can help them cope with the changes.

Impact of Custody Agreements on Relocation Decisions Legal Framework for Relocation in Ontario Relocating with Children After Divorce