Mobility in Ontario Family Law: Relocation After Divorce or Separation
Navigating the complexities of child relocation under Ontario family law after separation or divorce can be stressful for families. It requires proper notice, planning, and in some cases, involves litigation.
At Stephen Durbin & Associates, we provide expert legal guidance to ensure your rights are protected and the best interests of your child are prioritized. If you have questions about relocation, contact us to discuss how we can assist you with mobility or relocation issues in Ontario.
This guide walks you through what to do if you are considering relocating with your child or your ex-spouse is seeking to relocate with your child. It is not a substitute for personalized legal advice.
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Understanding Mobility in Ontario
In Ontario family law, “mobility” or “relocation” refers to a significant change in the residence of a child or a parent with parenting responsibilities that is likely to impact the child’s relationships with others, such as the other parent or those with parenting time. Relocation cases often arise when a parent wishes to move a considerable distance, potentially affecting existing parenting arrangements and requiring the court to review parenting time, decision-making responsibility, and the child’s best interests.
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The Divorce Act, amended in March 2021, governs relocation cases for married or formerly married parents in Canada. For unmarried parents, the Children’s Law Reform Act applies in Ontario. Both statutes emphasize the best interests of the child as the primary consideration in Ontario relocation disputes.
Key Legal Principles for Relocation in Ontario
When a court considers a parent’s request to relocate with a child, it evaluates several factors to determine what is in the child’s best interests. These factors, outlined in section 16.92(1) of the Divorce Act, include:
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- Reasons for the Relocation: Courts consider why the parent wishes to move, such as job opportunities, family support, or other factors that may enhance the child’s well-being.
- Impact on the Child: The court assesses how the move will affect the child’s emotional, physical, and psychological well-being.
- Parenting Time and Involvement: The court examines the time each parent spends with the child and their level of involvement in the child’s life.
- Compliance with Notice Requirements: The relocating parent must provide proper notice of the proposed move, as required under section 16.9 of the Divorce Act.
- Reasonableness of the Proposal: The court evaluates the relocating parent’s plan to maintain the child’s relationship with the other parent, including travel arrangements and parenting time adjustments.
- History of Compliance: The court considers whether each parent has adhered to existing family law orders or agreements.
Importantly, the court cannot consider whether the relocating parent would move with or without the child (section 16.92(2)), ensuring the focus remains on the child’s best interests rather than the parent’s intentions.
Burden of Proof in Relocation Cases
The Divorce Act specifies who bears the burden of proof in relocation cases, depending on the existing parenting arrangement:
- If the child spends substantially equal time with both parents, the parent seeking to relocate must prove that the move is in the child’s best interests (section 16.93(1)).
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- If the child spends the vast majority of time with the relocating parent, the parent opposing the move must prove that it is not in the child’s best interests (section 16.93(2)).
- In cases where neither scenario applies, both parents share the burden of presenting evidence on the child’s best interests.
These principles ensure that the court’s decision is tailored to the specific circumstances of the child and the parenting arrangement.
Notable Case Law on Relocation
Several key cases illustrate how Ontario courts apply these principles:
- Gordon v. Goertz [1996] 2 SCR 27: This landmark Supreme Court of Canada case established that the best interests of the child are paramount in relocation disputes. While the court initially held that a parent’s reasons for moving were generally irrelevant unless exceptional, amendments to the Divorce Act now require courts to consider these reasons explicitly.
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- Barendregt v. Grebliunas, 2022 SCC 22: The Supreme Court refined the Gordon framework, emphasizing that family violence is a critical factor in relocation decisions. The court confirmed that the Divorce Act amendments codify many of the Gordon principles while introducing new considerations, such as the relocating parent’s reasons and the prohibition on considering whether a parent would move without the child.
- Bourke v. Davis, 2021 ONCA 97 (CanLII):In this Ontario case, the court permitted a mother to relocate with her children to Washington State, despite an Office of the Children’s Lawyer recommendation against it. The decision highlighted the mother’s role as the primary caregiver, her detailed parenting plan to maintain the father’s relationship with the children, and the support network available in the new location.
- Wood v. Wood, 2014 ONSC 4470 (CanLII): The court allowed a mother to relocate from Bracebridge to Stittsville, Ontario, emphasizing that the disruption of changing custody would be more harmful to the children than the move itself, given the mother’s role as the primary caregiver.
Practical Considerations for Parents
If you are considering relocating with your child, it is crucial to:
- Provide Proper Notice: Under the Divorce Act, you must give written notice to the other parent at least 60 days before the proposed move, outlining the new address, relocation date, and proposed changes to parenting time.
- Develop a Parenting Plan: A detailed plan showing how you will maintain the child’s relationship with the other parent can strengthen your case.
- Consider Support Networks: Courts often look favorably on relocations where the child will have access to extended family or community support in the new location.
- Seek Legal Advice Early: Relocation cases are complex and fact-specific. Consulting an experienced family law lawyer can help you navigate the legal process and present a strong case.
How Stephen Durbin and Associates Can Help
At Stephen Durbin & Associates, our experienced family law team understands the emotional and legal complexities of relocation cases. We provide compassionate, client-focused representation to help you achieve a resolution that prioritizes your child’s best interests.
Whether you are seeking to relocate or opposing a proposed move, we will:
- Assess your case based on the latest legal principles and case law.
- Develop a tailored strategy to present your case effectively.
- Advocate for a parenting plan that supports your child’s well-being and relationships.
- Guide you through the notice requirements and court processes.
Our firm is committed to providing clear, practical advice to help you navigate Ontario child relocation and mobility law with confidence.
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