Relocation and Family Law in Ontario: What Happens When a Parent Wants to Move with Their Child?
Few issues in family law can be as emotionally charged and impactful as relocation. If you are a separated or divorced parent, and you need or want to move with your child to a new location, it can deeply affect everyone involved – especially the child him or herself.
Regardless of whether it’s due to career advancement, family needs, or personal safety, the need to relocate can be legally and emotionally complex. It might also come at an inopportune time, in that it causes new fractures in what might have been a hard-won period of post-divorce peace with your child’s other parent.
Under Canadian law, relocation applications require the court’s careful assessment of numerous factors, with the child’s best interests being uppermost. This article touches upon the essential legal issues that govern such applications in Ontario.
What Is Relocation?
Under section 2 of the federal Divorce Act, “relocation” is defined as a change in the residence of a child or a parent who has parenting time or decision-making responsibility – but it’s one where the move significantly affects the child’s relationship with another parent, or with someone who has contact rights under a court order.
This seemingly straightforward definition belies the complexity involved in such disputes, since relocation often touches on sensitive issues of parental rights, child welfare, and family dynamics.
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Legislative Framework
If you and your child’s other parent are no longer together, there are two pieces of legislation that impact your right as to relocate with your child. If you are married, it’s the Divorce Act, and if you are unmarried, it is the Ontario Children’s Law Reform Act (CLRA).
In particular:
- The Divorce Act: Recent amendments to the Divorce Act provide specific provisions for relocation cases, and emphasize the need to prioritize your child’s physical, emotional, and psychological safety, security, and well-being. Section 16 sets out the courts’ mandate to put your child’s best interest at the forefront whenever making a parenting order (including one allowing you to relocate), while section 16.92 outlines detailed factors that courts must consider in these kinds of applications specifically. These factors include:
- The reasons for your proposed relocation;
- The impact of the relocation on your child;
- The amount of time your child spends with you and anyone one else who has a right to parenting time with him or her;
- The level of involvement in the child’s life by each of you;
- The reasonableness of your proposal to relocate the child, taking into consideration, among other things, the location of the new place of residence and any necessary travel expenses; and
- Whether there is already a court order or agreement between you, that specifies where your child is to live.
- The Children’s Law Reform Act: For unmarried parents, section 39.4 of the CLRA mirrors many of these same provisions of the Divorce Act, while reinforcing the principle that the relocating parent bears the burden of demonstrating that the move is in the child’s best interests. The CLRA also makes it clear, in its s. 39.4(5), that if you are the parent who intends to relocate with your child, then you have the burden of proving that such a move would be in his or her best interests.
Judicial Guidance and Key Case Law
With this legislative framework in place, the Supreme Court of Canada has also helped shape the legal approach to relocation cases across the country.
It has done so through its landmark decisions in Gordon v. Goertz, [1996] 2 S.C.R. 27 and more recently, Barendregt v. Grebliunas, 2022 SCC 22. These rulings provide a framework to help Ontario courts when assessing whether a relocation request aligns with a child’s best interests, taking into account factors such as caregiving history, the child’s relationship with each parent, and the broader implications of the move. The courts recognize that there are numerous factors that can influence a child’s well-being and sense of security.
This means the court’s decision on whether to allow you to relocate will be highly contextual, fact-specific, and discretionary. Again the crucial question is whether your proposed relocation is in the best interests of your child, having regard to his or her physical, emotional and psychological safety, security and well-being.
What are the Factors?
Based on the legislation and Barendregt, there is a non-exhaustive list of factors and principles that a court will take into account when assessing your relocation application. They include the following:
- If you are your child’s primary parent, your wishes are not determinative. Nor is there any legal presumption in your favour, in terms of what you might decide is best.
- However, as primary parent your views will be entitled to “great respect” (Gordon v. Goertz) and will be given “the most serious consideration” (Metcalfe v. Metcalfe, 2022 ONSC 4471).
- Your proposed move is more likely to be approved if you are the primary caregiver; conversely it is more likely to be denied if there you and the other parent have a shared parenting arrangement. The history of how you and the other parent allocated caregiving responsibilities will be taken into account.
- The court will also keep in mind what is known as the “maximum contact rule”, which emphasizes that it’s desirable to maximize contact between the child and both of his or her parents. The corollary is the “friendly parent rule”, which ask the court to consider how willing each of you will be, to foster and support your child’s relationship with the other parent (where appropriate).
If your request to relocate arises for job-related reasons, the courts will also take this into account. Some additional points in this regard:
- The reason for you wanting to move are relevant but only insofar they are relevant to your child’s best interests. For example, if you want to move to take a job promotion with higher pay, the court can consider that the financial advantage you gain will inure to the benefit of your child (Barendregt v. Grebliunas, and Moreton v. Inthavixay, 2021 ONCA 501).
- In general, the law will tend to support a move for financial reasons if it is necessary for your career, since that in turn will affect your child’s best interests (Sammon v. Krajewski, 2021 ONSC 8310).
The Presence of Family Violence
In Barendregt the Supreme Court of Canada acknowledged and emphasized that the presence of family violence can have grave implications on your child’s development and welfare. For this reason, the presence of physical or emotional abuse or other kinds of family violence is considered an important factor when a court decides whether to allow your relocation request. This notion is also entrenched in the provisions of the Divorce Act and the CLRA.
This means that a court hearing your application to relocate will be significantly more likely to allow it, if you have proof of family violence by the other parent.
Personal Factors
Some final points about the context in which your request to move is being made:
- A court must avoid casting judgment your reason for wanting to move. A lack of compelling reason will not be held against you, unless it reflects poorly on your ability to meet your child’s needs.
- Courts are also directed not to consider the impact of its own decision or ruling on your relocation plans. In other words, when making its decision the court should never take into account whether you would relocate even without the chid, or conversely not relocate at all. (Divorce Act, s. 16.92(2); Barendregt v. Grebliunas, 2022 SCC 22).
With all that said, it bears repeating that the court’s inquiry will be fact-specific, contextual and individualized to your scenario. The judge must always consider the best interests of the particular child in the particular circumstances of your case.
Related: Effects of Divorce on Children – From a Lawyer’s Perspective.
Illustrative Cases
When courts are asked to make decisions about relocation, the outcomes will naturally depend on the particular facts of the case – and of course what is best for the child. Sometimes the results can be surprising.
For example, in a recent case called Rygiel v. Mathes, 2024 ONSC 33 the court rejected the mother’s bid to relocate so that she could accept a job promotion in another city, after her regular job in Toronto had been eliminated. The promotion did come with financial benefits that might benefit the child, but the evidence showed that the child had always been well looked-after, financially. As the court put it: “This is not a case in which there has been chronic financial instability that will be remedied by the new job.”
The court recognized the mother had no ulterior motive for the move request, and was not trying to impair the father’s relationship with the boy. However she had failed to take his views into consideration. For one thing, she accepted the promotion offer immediately, despite his expressed concerns about the potential impact on their son. Nor did she look for other jobs in Toronto or determine whether her employer had a lesser position available.
The court also noted the offered promotion involved long hours, evening and weekend work, and some job-related travel – all of which might have impacted the mother’s own ability to care for her son. The relocation would also be detrimental to the child’s relationship with his father, the court said, and with his sense of stability in their extended family, and in his school and community.
Conclusion
Relocation cases are deeply nuanced, and their individual outcomes are heavily dependent on the specific facts and circumstances.
If you are considering a relocation with your child, or are facing such a request from the other parent, it is vital to understand your rights and responsibilities under the law. For tailored legal guidance on this topic or other Family Law matters, don’t hesitate to contact our offices to get support from a specialized divorce and family lawyer in Toronto.