In Ontario’s family law, the issue of relocation arises when a parent wishes to move with their child post-separation, requiring careful consideration and, when necessary, legal procedures to address the complexities involved.
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Relocation is one of the most significant issues families can face after separation and divorce. This issue is complex and challenging to resolve and often requires adjustments to parenting time. Although you may be under the impression that once your separation agreement becomes final, you can move where you wish, this is not the case.
Relocation Separation Agreement Conditions
Using Traditional Litigation
Understanding the available options is crucial for making informed decisions. Traditional litigation offers a formal legal process, providing a structured platform for each party to present their case in court. This method may be suitable for cases marked by high conflict or intricate legal complexities, offering the clarity and finality of court decisions.
Using Collaborative Process For Relocation
Collaborative law presents an alternative approach, emphasizing cooperation and open communication between parties. By fostering creative problem-solving, collaborative law aims to preserve relationships and empower couples to shape mutually acceptable solutions. Moreover, it often proves to be more cost-effective and time-efficient than traditional litigation, ultimately nurturing healthier post-divorce relationships and minimizing the emotional impact, particularly on children.
Requirements
- There must be a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child;
- The change must materially (significantly) affect the child, and;
- The change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
Your separation agreement should have a mobility clause. Learn more about why a mobility clause matters for relocation.
Proving Relocation is The Best Option For Your Child
If you successfully prove the above elements, you must then prove to the Court that your relocation is in the best interests of the child. The Courts consider the following factors in determining an Order for Relocation:
- The existing custody arrangement and relationship between the child and the custodial parent;
- The existing access arrangement and the relationship between the child and the access parent;
- The desirability of maximizing contact between the child and both parents;
- The views of the child (this factor increases in weight with a child’s age). The child’s age may be a significant factor for not permitting the move where the child is of such a young age that he/she has no capacity for wishes.
- The custodial parent’s reason for moving is a factor ONLY in the exceptional case where it is relevant to the parent’s ability to meet the child’s needs;
- The disruption to the child of a change in custody;
- The disruption to the child consequent on removal from family, schools, and community;
- The custodial parent’s views, but views are not determinative.
Considering the above eight points, the Courts do not have a strict guideline to follow, rather, to determine a court order for relocation is discretionary to each Judge. The key factor to ensure that is demonstrated to the Courts when requesting an Order for Relocation is that the relocation is in the best interests of the child, not in the best interests of the parent.
The Process of Relocating a Child in Ontario
In Ontario, the process of relocating a child after separation involves several steps and considerations:
Notification: The parent wishing to relocate must provide written notice to the other parent, detailing the proposed relocation, including the new address, reasons for the move, and a proposed revised parenting plan.
Negotiation/Mediation: Both parents may attempt to negotiate a new parenting plan through mediation or collaborative law. This process aims to reach a mutually agreeable solution regarding custody and access arrangements post-relocation.
Court Application (if necessary): If the parents cannot agree on the relocation, the parent wishing to move may need to apply to the court for permission to relocate the child. This involves filing a formal application outlining the reasons for the move and seeking approval from the court.
Best Interests of the Child: The court’s primary consideration in deciding whether to permit the relocation is the best interests of the child. Factors such as the reason for the move, the child’s relationship with each parent, the impact on the child’s stability and well-being, and the proposed parenting plan post-relocation are all taken into account.
Court Decision: The court will review the evidence presented by both parents and make a decision based on the child’s best interests. This decision may involve approving the relocation with specific conditions or denying the relocation altogether.
Implementation of Court Order: Once a decision is reached, both parents must comply with the court’s order regarding custody and access arrangements, including any conditions set forth in the relocation order.
Should you wish to discuss additional matters pertaining to relocation in family law with one of our Ontario-based lawyers, please reach out to us at (416) 840-1475 or book your complimentary initial consultation here.
