MOVING

There are obligations and rules if a person having parenting arrangements or a contact order if they plan to move or if they plan to move the child's residence.

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Different rules apply to traveling with the child.

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There can be serious consequences for not following these rules.  You may need legal advice to understand how they apply to your case. 

 

The rules apply to all moves..  They are are divided into two types:

• (non-relocation) moves

• relocations

 

(It does not apply if the child is eighteen years of age or older.)

 

If no one else has parenting responsibilities (custody/access or decision-making) or contact (by a non-parent), then there would be no one to give notice to.  The rules apply whether or not the existing Order or Agreement is not being followed.

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There may be exceptions to the obligation to give notice:

• specific wording of an order may remove the obligation to give notice; or. 

• where there is domestic violence and safety concerns.

However, I would recommend you get legal advice about how the new law affects your case, before you plan a move.

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Notice of (Minor) Moves

Non-relocation moves are minor changes of address.

 

Notice of a non-relocation move must be given before the move.  I strongly recommend that you retain proof that notice was given.

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There is no proscribed form for giving this notice.  But it must be given in writing.

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Notice of Relocation

There are greater notice requirements for giving notice of a “relocation” of the child or a person with a parenting (custody/access) order.

 

   Whether a move is a “relocation” depends on the facts of a particular case.  A relocation is defined as:
“… a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with,

1. another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, or

2. a person who has contact with respect to the child under a contact order

As you may understand, whether a move is a non-relocation or a relocation can have major consequences.  Obtain legal advice if the move might be considered a “relocation”.

 

Notice of a relocation also requires “a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised” after the relocation.  Great care should be given when drafting these terms.  They should be worded as if they were going in a court order.  You may need to obtain a new court order (even if there is agreement) but,  in some cases, a proper written agreement may be enough.

 

You must give notice 60 days before the move. 

 

You can find the commended form on the internet:

• for orders under the (federal) Divorce Act:  https://www.justice.gc.ca/eng/fl-df/divorce/nrf-fad.html

• for orders under the (Ontario) Children’s Law Reform Act or agreements: http://ontariocourtforms.on.ca/static/media/uploads/courtforms/clra/clra-notice-of-relocation-feb2021-en.doc

 

Failure to give notice of a relocation is a factor in deciding a dispute in court over a relocation (or an order the return of a child to the child’s original location).

 

The other parent has a right to object, but this must be done within 30 days of the Notice of Relocation.  The objection may be made:

• by written notice (There is no proscribed form for this, but careful wording should be used.); or

• by starting a court proceeding regarding the move.

 

If an objection is made in time, the parent cannot move until the dispute is resolved.  If there is no objection in time (and no court order prohibiting the move), the parent can move after the 60 days from the Notice of Relocation.

 

Relocation Disputes

A court can refuse to allow the move of a child (or undo the move) or change the provisions of the parenting (custody/access) order.

 

The Acts provide for factors to consider in cases when relocation is disputed.

 

Whether the parent relocating has complied with all relevant orders, agreements, and laws is a factor the court will consider.

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The Acts also contain the “burden of proof” (who has to convince the court) in these disputes.

1. If the child spends substantially equal time in the care of each party,
   then the party seeking approval for the relocation must convince the court.*

2. If the child spends the vast majority of the time in the care of the party who intends to relocate the child,
   then the party objecting to the relocation must convince the court.*

3. Otherwise, the parties share the burden of convincing the court.

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* These tests only apply if there was substantial compliance with the order/agreement.

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Which category your parenting arrangement falls under may not be simple to determine but can have a major impact on the outcome of a dispute.   

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The court will not prohibit the move of the parent, but only the child.  However, the court may change the parenting arrangement, affecting the parents time with the child or decision-making authority.

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Notice of Move – Person with Contact

A “contact order” is an order for a non-parent to have time or communications with a child.

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The person with a contact order must give written notice of any move they plan to make, prior to the move.

 

If the move is “likely to have a significant impact on your relationship with the child”, then the prescribed form must be sent 60 days before the move.  It must include a proposal about how the contact may be exercised after the move.  The forms:

• for orders under the (federal) Divorce Act:  (not yet available?)

• for orders under the (Ontario) Children’s Law Reform Act or agreements:
  http://ontariocourtforms.on.ca/static/media/uploads/courtforms/clra/clra-notice-of-change-in-residence-of-person-with-contact-feb2021-en.doc

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There is no right of objection to the move.  However, a move could be grounds to change the contact order.

 

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Great care should be taken in giving proper notice and in determining whether the move is a relocation or not.

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