Separating parents with children must decide upon a parenting plan (or otherwise known as an access schedule) their children will follow considering the “new norm” of raising children under separate households. The paramount consideration in Ontario law when deciding on a parenting plan for children, is considering what is in their “best interests”.
Crafting a parenting plan can be as easy or as complicated, as parents dictate. However, when a parent decides they want to move a significant distance away from the other parent, this can give rise to a whole host of complications and factors. A parent wanting to move with their child/children triggers what are known as “mobility rights”, “relocation rights”, or are known as mobility/relocation cases.
Notice Requirements for a Change in Residence versus a Relocation
Mobility rights in Ontario are governed by the Children’s Law Reform Act (which applies to both married and unmarried couples) or the Divorce Act (for married couples). Recent changes have been made to both Acts to specifically address mobility and relocation issues, with newly mandated notice requirements prior to a change in address. It is important to note that these requirements are different depending on whether a parent is pursuing a change in residence or a relocation.
A Change in Residence
A “change in residence” refers to circumstances where a move that is taking place is one that is not significant in nature. Whether the move is “significant” has no specific parameters or radius, which means that “significance” is assessed on a case-by-case basis. Whether a move is “significant” will depend on whether the change in address will “significantly impact” the child’s relationship with the other (non-moving) parent or party.
Statute requires that any parent or party who has decision-making responsibility or parenting time with a child must communicate, in advance, an intended change in residence to any other person who has decision-making responsibility, parenting time, or contact rights with that child.
Notice must be provided in writing, setting out the date on which the change is expected to occur, and setting out the new address and any new contact information. There is no prescribed timeline on how far in advance this notice needs to be provided, for a change in residence.
A Relocation
A “relocation” means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to a child, that is likely to have a significant impact on the child’s relationship with the other parent or relevant party.
Statute requires that any parent or party who has decision-making responsibility or parenting time with a child must communicate, in advance, an intended change in residence to any other person who has decision-making responsibility, parenting time, or contact rights with that child.
Notice of a relocation must be provided in writing, at least sixty (60) days in advance of the expected relocation. The notice must set out the expected date of the proposed relocation, the new address and any new contact information and must set out a full proposal as to what the new parenting plan may be in light of the relocation. Under the Divorce Act, there is a prescribed form that parties can use to provide notice.
Will the Courts allow the Change in Residence/Relocation?
A parent or relevant party objecting to a change in residence or relocation of a child should seek legal counsel as soon as practically possible and/or commence a Court Application to object to the change as soon as possible. Failing to formally express your objection to the change in writing and taking appropriate legal action can authorize the moving party to relocate in law, without issue.
As stated above, the primary consideration in parenting disputes is determining what is in the best interests of a child/children. Thus, both parents/parties should be prepared to establish why they feel the change in residence or relocation is or is not in the best interests of the child/children.
It should be noted that a parent having sole decision-making rights (or sole custody) does not get to determine a child’s residence unilaterally. Therefore, notice requirements apply regardless of decision-making or custodial arrangements.
Below is a non-exhaustive list of factors Courts will consider in determining the best interests of the children, as well as determining whether it is in their best interests to relocate (note: these can be found at sections 24 and 39.3 of the Children’s Law Reform Act, or at sections 16 and 16.9 of the Divorce Act):
Primary consideration
The court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including:
- (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
- (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
- (d) the history of care of the child;
- (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
- (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- (g) any plans for the child’s care;
- (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
- (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
- (j) any family violence and its impact on, among other things,
- (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
- (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence
In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
- (a) the nature, seriousness and frequency of the family violence and when it occurred;
- (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
- (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
- (d) the physical, emotional and psychological harm or risk of harm to the child;
- (e) any compromise to the safety of the child or other family member;
- (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
- (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
- (h) any other relevant factor.
Factors Specific to Relocation
In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
- (a) the reasons for the relocation;
- (b) the impact of the relocation on the child;
- (c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
- (d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
- (e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
- (f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
- (g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
As can be seen from the best interests of the child factors outlined above, determining whether a parent will be allowed a change in residence/relocation will depend on various factors, and will be determined on a case-by-case basis. It is important to be mindful of the notice and objection requirements and timelines that are now mandated in law.
If you are operating under a parenting plan for your child/children or are attempting to establish a parenting plan and have concerns about mobility rights, a change in residence or relocation, it is important that you obtain legal advice from a Family Law Lawyer to determine the strengths and weaknesses of your case, to discuss whether such a change aligns with the best interests of your child/children, and to ensure you are following the proper notice and/or objection procedures outlined in law.
The family law team and Mills & Mills would be happy to assist you in determining the best course of action on your matter.
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