Vaughan Family Lawyers Advising on Mobility & Relocation

The issue of mobility arises in family law matters when one parent wants to move, with their children, to a new place. Depending on the distance of the proposed move, a parent’s relocation can have a significant impact on the other parent’s ability to see their child. Mobility is a highly emotional and time-sensitive issue governed by strict court deadlines.

At GDH Family Law, we understand the stress that both parents can experience in a mobility dispute. We know that a relocation can result in substantial upheaval to the family dynamic and a child’s right to spend as much time as possible with both parents (so long as it is in the child’s best interests). Our knowledgeable team has extensive experience providing bespoke, out-of-the-box legal solutions tailored to our clients and their families’ unique needs.

Changing Residence vs. Relocation

Both the federal Divorce Act (which applies only to parents who were legally married) and Ontario’s Children’s Law Reform Act distinguish between a “change in residence” and “relocation”. Certain parties (including the non-moving parent, in most situations) are entitled to notice of the proposed change in residence and relocation. A court may waive the notice requirements if there is a risk of family violence.

Change in Residence

A change in residence is a move that isn’t likely to have much impact on the other parent. For example, the parent with whom the child resides the most (formerly known as the “custodial parent”) may decide to move to a new house within the same city with no need to change any parenting time or decision-making arrangements.

When a parent who has parenting time or decision-making for a child decides to change their residence (or the child’s residence), they are required to notify any other person who has parenting time, decision-making responsibility, or contact under a contact order. The parent must let these other parties know in writing and provide their new address and contact information.

Relocation

The term “relocation” refers to a more substantial move that will impact the non-moving parent’s relationship with the child. An example of relocation is a parent’s decision to move to a different province or country with the child.

Where parents have a parenting or separation agreement that addresses the issue of mobility, they will be required to abide by the terms of the agreement. If the parents have an agreement or court order that grants the non-moving parent decision-making responsibility or parenting time, the child cannot be relocated without the non-moving parent’s consent or a court order granting permission to do so.

When a person with parenting time or decision-making responsibility for a child intends to relocate, they must notify any other person who has parenting time, decision-making responsibility, or contact under a contact order concerning the child. The notice must be provided at least 60 days before the proposed relocation and must include the following information:

• The expected date of the relocation;
• The address of the new residence and contact information for the moving parent and child; and
• A proposal addressing how the non-moving parent (or another person) may exercise their parenting time, decision-making responsibility, or contact after the relocation.

The non-moving parent has 30 days after receiving notice of the proposed relocation to provide an objective, either in writing or by application to the court. If the non-moving parent does not object within the 30-day timeline, the other parent will be permitted to relocate.

The Test for Parental Relocation

As with all family law matters affecting children (such as parenting time and decision-making responsibility), the primary consideration in a mobility dispute is the children’s best interests.

The factors affecting whether a parent should be authorized to relocate with their child(ren), as set out under Canada’s Divorce Act and Ontario’s Children’s Law Reform Act, include:

• The reasons for the relocation;
• The impact of the relocation on the child;
• The amount of time the non-moving parent (or another person with parenting time) spends with the child, and the level of their involvement in the child’s life;
• Whether the parent who intends to relocate has complied with the notice requirements under the legislation and any regulations, orders, family arbitration awards, or agreements;
• Any existing court orders or family arbitration awards or agreements between the parties that set out where the child is supposed to live;
• The reasonableness of the relocation with respect to its effect on the other parent’s decision-making responsibility or parenting time. This includes considerations like the location of the new residence and travel expenses;
• The moving parent’s history of compliance (or non-compliance) and the likelihood of future compliance with their obligations under any applicable family laws, regulations, court orders, family arbitration awards, or agreements.

The law is clear that one factor that is not considered is what action the parent who intends to relocate will take if the child is not allowed to move – i.e., whether the parent will relocate anyway or stay where they are. In situations where the moving parent has the child in their care for the vast majority of the time, the onus is on the non-moving parent to establish that the relocation is not in the child’s best interests. In situations where both parties have substantially equal parenting time, the moving parent must establish that the relocation is in the child’s best interests.

Contact GDH Family Law in Vaughan for Guidance in Mobility & Relocation Matters

GDH Family Law was founded by lawyers who have dedicated their entire careers to the practice of family law. We understand the complex technical and emotional aspects of mobility issues and provide creative legal strategies to ease our clients’ concerns. We are also a commanding presence in an arbitration or trial and will assertively advocate for your interests when needed.

GDH Family Law offers full-service representation throughout your entire family law matter or can assist with one aspect of your case, such as a mobility dispute. We are based in Vaughan and represent clients throughout the surrounding areas, including Maple, Concord, Woodbridge, Markham, Kleinburg, Richmond Hill, Nobleton, Toronto, Newmarket, Aurora, Brampton, Caledon, Mississauga, Etobicoke, North York, Thornhill, and King City. For a free initial consultation on your family matter, contact us at 416-535-6944 or reach out online.