Moving with Children After Divorce: Legal Requirements and Challenges

Understanding Ontario’s Family Law on Relocation

Moving with children after a divorce is a complex legal matter in Ontario. Family law considers the best interests of the child while balancing parental rights. If one parent wishes to relocate with the child, they must adhere to legal procedures outlined in the Divorce Act (Canada) and Ontario’s Children’s Law Reform Act (CLRA).

Divorce Act (Canada) Changes (Bill C-78) and How They Impact Relocation

Significant amendments to the Divorce Act under Bill C-78, which came into effect on March 1, 2021, introduced clearer guidelines for parental relocation. These changes aim to:

• Prioritize the best interests of the child in all relocation decisions.
• Establish specific procedures for notifying the other parent about a proposed move.
• Set out clear criteria courts must consider when approving or denying relocation requests.

Key Provisions Under Bill C-78

1. Mandatory Notice Requirement

1. • A parent seeking to relocate with a child must provide at least 60 days’ written notice to the other parent.
   • The notice must include:
     • The proposed new address.
     • The date of relocation.
     • A detailed plan for maintaining the child’s relationship with the non-relocating parent.

2. Objection Process

1. • The non-relocating parent has 30 days to file a formal objection with the court.
   • If no objection is filed, and the move does not significantly impact parenting time, the relocating parent may proceed.

3. Best Interests of the Child Standard

1. • The court evaluates each relocation case based on the child’s physical, emotional, and psychological well-being.
   • Factors include:
     • The child’s relationship with both parents.
     • Educational, health, and social implications of the move.
     • The relocating parent’s reasons for moving.
     • The non-relocating parent’s ability to continue meaningful involvement in the child’s life.

If the court determines that the relocation would negatively impact the child’s well-being, the request may be denied.

 

Children’s Law Reform Act (Ontario) and Its Role in Parental Mobility

For unmarried or separated parents who were never legally married, the Children’s Law Reform Act (CLRA) governs relocation matters. The CLRA aligns with the Divorce Act in prioritizing the child’s best interests but differs in how it applies to decision-making and parenting time arrangements.

Key Considerations Under the CLRA

1. Best Interests of the Child

1. • Similar to the Divorce Act, Ontario courts under the CLRA evaluate whether the move benefits the child.
   • The relocating parent must demonstrate that the move will enhance stability, schooling, family support, or financial security.

2. Court Approval for Major Relocations

1. • If the other parent objects to the relocation, the moving parent must seek court approval.
   • Courts review the child’s current living arrangements and whether the move would interfere with the other parent’s parenting time.

3. Decision-Making Responsibility and Parenting Time

1. • If one parent has sole decision-making responsibility, they may have more freedom to relocate.
   • If both parents share joint custody, the relocating parent may face legal challenges in obtaining approval.

Even if a parent has primary custody, courts still assess the child’s bond with both parents and the impact of moving away from their existing community.

 

Definition of Mobility Rights and How They Apply to Custodial and Non-Custodial Parents

What Are Mobility Rights?

Mobility rights refer to a parent’s ability to relocate with their child after a divorce or separation. In Canada, these rights must be balanced with the child’s right to maintain relationships with both parents.

How Mobility Rights Apply to Custodial Parents

• A primary residential parent does not have an automatic right to move.
• They must either obtain the other parent’s consent or court approval before relocating.
• If relocation is approved, the custodial parent must ensure the non-custodial parent still has meaningful access to the child.

How Mobility Rights Apply to Non-Custodial Parents

• The non-custodial parent has the right to object to the move if it significantly affects their parenting time.
• If relocation is approved, courts may adjust parenting arrangements, including:
  • Longer visitation periods during school breaks.
  • Increased virtual communication (video calls, messaging).
  • Travel cost-sharing arrangements.

 

 

Legal Requirements for Moving with Children After Divorce

Relocating with children after a divorce involves strict legal requirements under Ontario’s Divorce Act (Canada) and Children’s Law Reform Act (CLRA). The law ensures that moves do not negatively impact the child’s relationship with both parents. Below are the key legal steps a relocating parent must follow.

 

1. Notifying the Other Parent: Required Timelines and Format

Under the Divorce Act (Bill C-78), a parent who wishes to relocate with a child must provide written notice to the other parent at least 60 days before the move. This notification must include:

• Proposed new address
• Date of relocation
• Updated parenting plan, including details on maintaining the child’s relationship with the other parent

The Children’s Law Reform Act (CLRA) also requires similar notice for unmarried parents.

Format of the Notification

• The notice must be in writing (letter or email).
• The parent should use a formal legal notice format to ensure compliance.
• If the other parent has a lawyer, sending a copy to their lawyer is advisable.

What If the Other Parent Disagrees?

• The non-relocating parent has 30 days to object by filing a formal response.
• If no objection is raised within this period, the move may proceed unless a court intervenes.

If the non-relocating parent objects, the relocating parent must obtain court approval before moving.

 

2. Providing a Relocation Plan: Addressing Housing, Schooling, and Community Impact

The parent seeking to relocate must present a relocation plan that demonstrates how the move benefits the child. Courts will assess whether the move aligns with the child’s best interests, considering:

Key Elements of a Strong Relocation Plan

1. Housing Arrangements

1. • Secure stable and suitable housing in the new location.
   • Provide details on living conditions, proximity to family support, and overall safety.

2. Schooling and Education

1. • Identify the new school and any educational advantages the child will gain.
   • Address how the move impacts the child’s academic progress.

3. Community and Social Support

1. • Explain how the new community will enhance the child’s well-being (e.g., healthcare, extracurricular activities).
   • Outline plans to maintain the child’s friendships and support networks.

4. Parenting Time Adjustments

1. • Offer a revised parenting schedule to ensure the non-relocating parent maintains meaningful contact.
   • Include alternative arrangements such as:
     • Extended summer/winter holidays with the other parent
     • Increased virtual communication (video calls, messages)
     • Travel cost-sharing proposals

 

3. Obtaining Consent or Court Approval: Steps to Take If the Other Parent Disagrees

If the other parent objects to the relocation, the relocating parent must seek court approval. The court will determine whether the move aligns with the child’s best interests by considering:

1. The Child’s Relationship with Both Parents

1. • If relocation significantly reduces parenting time for the non-relocating parent, the court may deny the request.

2. Reasons for the Move

1. • The court evaluates whether the move is necessary (e.g., job opportunity, better education, family support).
   • Moves based on personal preference alone may be rejected.

3. Impact on the Child

1. • Judges examine the emotional, social, and educational effects of the move on the child.
   • If the child has strong ties to their current home, relocation may not be approved.

Steps to Obtain Court Approval

1. File a Motion for Relocation

1. • The relocating parent must submit an application to the Ontario family court.

2. Provide Supporting Evidence

1. • This includes:
     • A detailed relocation plan
     • Evidence of improved educational or financial stability
     • Testimonies from teachers, counsellors, or family members (if relevant)

3. Attend a Court Hearing

1. • Both parents will present their arguments before a judge.
   • The court will make a decision based on the best interests of the child.

4. Receive a Final Decision

1. • If the court approves the move, it may also modify parenting arrangements.
   • If denied, the relocating parent must remain in Ontario with the child unless further legal action is taken.

 

Factors Courts Consider in Relocation Cases

When a parent wishes to relocate with a child after divorce, Ontario family courts carefully evaluate whether the move aligns with the child’s best interests. The courts assess several factors before granting or denying a relocation request, ensuring that the child’s well-being remains the primary focus.

1. Best Interests of the Child as the Primary Consideration

The best interests of the child are the most critical factor in any relocation case. Ontario courts refer to Section 16 of the Divorce Act and the Children’s Law Reform Act (CLRA) to determine how the proposed move will affect the child’s:

• Emotional and psychological well-being
• Physical health and safety
• Education and social development
• Connection to family and community

The court also considers the child’s views and preferences, especially if the child is mature enough to express them. If the move would disrupt their emotional stability or existing support systems, the court may deny the request.

 

2. Impact of the Move on Parent-Child Relationships

Relocation often affects the child’s ability to maintain meaningful contact with the non-relocating parent. Courts assess:

• How the move will change the parenting schedule
• Whether the child will still have regular access to the non-relocating parent
• The potential for long-distance parenting challenges, such as travel costs and time zone differences

If the move would significantly weaken the child’s relationship with one parent, the court may be hesitant to approve it. However, if the relocating parent provides a viable plan to maintain parent-child contact (such as extended visits, virtual communication, or travel accommodations), the court may be more likely to consider relocation.

3. Stability of the Child’s Current Environment vs. Benefits of Relocation

Courts compare the stability of the child’s current living situation with the potential benefits of relocating. They examine:

• Educational Opportunities: Will the new location provide better schools or academic support?
• Family Support Systems: Does the child have close relatives in the new location who can offer additional care?
• Healthcare and Special Needs: Will the move improve access to necessary healthcare or therapy?
• Financial Stability: Will the relocating parent have better job prospects or housing security?

If the benefits of the move outweigh the potential disruptions, the court may approve the relocation. However, if the move introduces uncertainty, such as unstable employment or frequent changes in residence, the court may decide against it.

4. Willingness of Both Parents to Support Ongoing Contact

Judges also assess each parent’s willingness to support the child’s relationship with the other parent. If a parent is actively trying to limit contact, the court may view this as not being in the child’s best interests.

Factors courts consider include:

• Has the relocating parent proposed a realistic plan for maintaining contact?
• Does the non-relocating parent have a history of involvement in the child’s life?
• Are both parents cooperative in making arrangements for parenting time?

A parent who refuses to facilitate ongoing contact may face a weaker case for relocation. The court values parents who encourage the child to maintain strong relationships with both sides of the family.

 

Challenges Parents Face When Seeking to Relocate

Relocating with a child after divorce presents several legal and emotional hurdles. While some parents may agree on the move, others face resistance from the non-moving parent, legal scrutiny, and emotional stress for both the child and parents. Courts require compelling reasons to approve relocation, ensuring it aligns with the child’s best interests. Below are the main challenges parents encounter when seeking to relocate with their child.

 

1. Resistance from the Non-Moving Parent

One of the most significant obstacles in relocation cases is opposition from the other parent. The non-moving parent may argue that the move:

• Reduces their parenting time and damages their relationship with the child.
• Disrupts the child’s stability in their current home, school, and community.
• Is motivated by personal reasons rather than the child’s best interests.

If the non-moving parent formally objects, the relocating parent must seek court approval. Legal battles over relocation can be time-consuming and expensive, often leading to prolonged disputes.

 

2. Proving That the Move is Beneficial for the Child

Courts require solid evidence that the relocation will positively impact the child’s well-being. The relocating parent must demonstrate:

• Educational Benefits – Will the child attend a better school or receive specialized support?
• Family Support – Will extended family provide additional stability and care?
• Healthcare Improvements – Will the child have access to better medical facilities or specialists?
• Financial Security – Does the move offer better employment opportunities or housing stability?

The parent must also prove that the move will not harm the child’s relationship with the non-relocating parent. Courts are cautious about approving relocations without a strong, child-centered rationale.

3. Potential Modifications to Parenting Time and Child Support

If the relocation is approved, the court may modify:

• Parenting time schedules – The non-moving parent may receive extended visits during school breaks or holidays.
• Communication arrangements – Virtual visits (video calls, phone calls) may be necessary to maintain parent-child contact.
• Child support obligations – If travel expenses increase due to relocation, the court may adjust child support payments to reflect additional costs.

Parents must be prepared for changes to their existing custody and support arrangements, which may require negotiation or court intervention.

4. Emotional and Psychological Effects on the Child

Relocation can have significant emotional and psychological impacts on children, especially if they are leaving behind:

• A close relationship with the non-moving parent.
• Friends, teachers, and a familiar school environment.
• A stable and supportive community.

Children may experience:

• Anxiety and stress about adapting to a new environment.
• Feelings of guilt or conflict about leaving a parent behind.
• Difficulty adjusting to new social and academic settings.

To mitigate these effects, parents should:

• Involve the child in the decision-making process (where appropriate).
• Ensure consistent communication between the child and both parents.
• Seek professional support, such as counseling, to help the child adjust.

How a Toronto Divorce Lawyer Can Help

Relocating with a child after divorce is a legally complex process in Ontario, requiring strict adherence to the Divorce Act (Canada) and the Children’s Law Reform Act (CLRA). A Toronto divorce lawyer plays a crucial role in guiding parents through the relocation process, whether by negotiating agreements or representing them in court. Here’s how an experienced lawyer can assist:

 

1. Legal Guidance on Filing a Motion for Relocation

If a relocation request is contested, the moving parent must file a motion for relocation in family court. A divorce lawyer helps by:

• Assessing the Strength of the Case – Evaluating whether the proposed move aligns with the child’s best interests under Ontario family law.
• Preparing Legal Documents – Drafting a Notice of Relocation that meets the 60-day requirement under the Divorce Act.
• Gathering Supporting Evidence – Compiling proof of employment opportunities, educational benefits, family support networks, and other justifications for the move.
• Explaining Court Procedures – Advising on timelines, hearings, and legal expectations for the relocation case.

A lawyer ensures that all legal requirements are met, reducing the risk of a denied request due to procedural errors.

 

2. Assisting in Negotiating Agreements to Avoid Court Disputes

Court battles over relocation can be stressful, expensive, and emotionally taxing for both parents and children. A skilled divorce lawyer can help negotiate a mutually agreeable solution outside of court by:

• Facilitating Mediation – Helping both parents reach an agreement through structured discussions, avoiding a drawn-out legal fight.
• Drafting a Relocation Agreement – Ensuring both parties agree on parenting time adjustments, travel arrangements, and child support modifications.
• Encouraging Compromise – Finding creative solutions, such as longer visits during school holidays, virtual communication, or shared travel expenses.

By reaching an agreement without court intervention, parents save time and reduce emotional distress for their child.

 

3. Representing Clients in Court if the Relocation is Contested

If the non-moving parent objects to the relocation, the case may proceed to family court, where a judge will decide based on the child’s best interests. A divorce lawyer provides:

• Court Representation – Presenting compelling arguments and legal precedents to support or challenge the relocation.
• Cross-Examination of the Other Parent – Challenging objections by proving that the move will not harm the child’s well-being.
• Expert Testimony – Bringing in child psychologists, educators, or social workers to support the case.
• Advocacy for Fair Parenting Plans – Ensuring that if relocation is granted, the non-moving parent still has meaningful access to the child.

An experienced lawyer maximizes the chances of success by building a strong case tailored to Ontario’s family law principles.

 

What to Do If the Court Denies the Relocation Request

If an Ontario family court denies a parent’s request to relocate with their child, it does not necessarily mean that relocation is permanently off the table. Parents still have legal options, including appealing the decision, adjusting co-parenting arrangements, or seeking custody modifications if circumstances change.

 

1. Options for Appealing the Decision

A parent can appeal the court’s decision if they believe the judge made a legal error in assessing their relocation request. However, appeals are not easy to win, as courts give significant weight to the best interests of the child in their initial ruling.

Steps to Appeal a Relocation Decision in Ontario

1. Consult a Family Lawyer – A lawyer will evaluate whether there are valid grounds for appeal, such as:

1. • The judge misinterpreted the law.
   • The court failed to consider key evidence.
   • There was a procedural error during the case.

2. File a Notice of Appeal – This document must be submitted to the Ontario Court of Appeal within the designated timeframe (usually 30 days from the court’s decision).
3. Present New Legal Arguments – The appeal will focus on legal and procedural issues, not simply dissatisfaction with the ruling.
4. Await the Appeal Outcome – The appeal court may:

1. • Uphold the original decision (denying relocation).
   • Order a new trial if errors are found.
   • Reverse the ruling, allowing the relocation to proceed.

Since appeals are costly and time-consuming, many parents opt for modifying co-parenting arrangements before pursuing an appeal.

 

2. Adjusting Co-Parenting Arrangements to Improve Future Chances

If relocation is denied, the court may have concerns about how the move would impact the child’s stability, education, and relationship with the non-relocating parent. A parent can improve their chances in a future relocation request by:

• Building a stronger case – Addressing the reasons for the initial denial, such as:

• • Securing better housing, job opportunities, or schooling in the new location.
  • Proposing a more comprehensive parenting plan to ensure ongoing contact with the other parent.

• Demonstrating flexibility in co-parenting – Courts favour parents who support the child’s relationship with both parents. By:

• • Cooperating on scheduling changes.
  • Allowing more visitation time for the other parent.
  • Maintaining open communication with the co-parent.

• Seeking mediation – If relocation was denied due to parental conflict, mediation may help reach a mutual agreement in the future.

Making these adjustments strengthens future relocation requests by demonstrating that the move is carefully planned and in the child’s best interests.

 

3. Seeking Modification of Custody if Circumstances Change

If a parent’s circumstances significantly change, they may apply for a modification of custody and parenting time under Ontario’s Children’s Law Reform Act (CLRA) or the Divorce Act.

Valid Reasons to Request Custody Modification for Relocation

1. New Employment Opportunities

1. • If the relocating parent secures a better-paying job or one that improves their financial stability, the court may reconsider the move.

2. Changes in the Child’s Needs

1. • If the child develops medical, educational, or emotional needs that the new location better addresses, a parent can apply for a modification.

3. Non-Relocating Parent Becomes Less Involved

1. • If the parent opposing the move becomes less engaged in parenting, relocation may become a stronger option.

Steps to Request a Custody Modification

1. File a Motion to Change Parenting Arrangements – This request is submitted to the Ontario Family Court.
2. Provide New Evidence – Demonstrate how circumstances have changed and why relocation is now in the child’s best interests.
3. Attend a Court Hearing – The judge will assess whether the proposed move now meets legal requirements for relocation approval.