CANADA Law and Practice Contributed by: Shannon Beddoe, Annabelle Lim and Susannah Mungall, McCarthy Hansen & Company LLP
2. Relocation 2.1 Whose Consent Is Required for Relocation?
the relocation. If they do not object within this time - frame by filing an objection or by starting an applica - tion, and there is no order prohibiting the relocation, the parent who wishes to move is permitted to relo - cate with the child (see Section 16.91 of the Divorce Act). 2.2 Relocation Without Full Consent If a person with parenting time or decision-making responsibility objects to the proposed relocation, the relocation cannot proceed immediately. The parties may first attempt to resolve the issue through negotiation or mediation. This could occur privately or through counsel. However, if the parties are unable to reach an agreement, the matter may ultimately proceed to trial, where the court will decide whether the proposed relocation is in the child’s “best interests” and should be permitted. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation In deciding whether to permit the proposed relocation, Canadian courts will consider the factors enumerated in Sections 16 and 16.92 of the Divorce Act (for non- married parents in Ontario, identical provisions are located in Sections 24 and 39.4 of the Children’s Law Reform Act). Notably, the court is not primarily concerned with fair - ness as between the parents. The ultimate question is always whether the relocation is in the best interests of the child, which is “a fact-specific and highly dis - cretionary decision” ( N . M v M . M , 2026 ONSC 2766 at para 10). Section 16 (3) – Best Interests of the Child Factors These factors include: • the child’s needs, given the child’s age and stage of development, such as the child’s need for stabil - ity; • 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;
In Canada, the federal Divorce Act governs child relo - cation for parents who were married and are divorc - ing. For non-married couples/parents, provincial leg - islation applies. The relocation provisions in provincial legislation closely correspond to the relocation pro - visions in the Divorce Act. Indeed, in Ontario’s Chil - dren’s Law Reform Act, the relocation provisions are identical. In Canadian law, child relocation is defined as a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility – or who has a pending application for a parenting order – that is likely to have a significant impact on the child’s relationship with: • a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or • a person who has contact with the child under a contact order. Consent – Persons with Parenting Time and/or Decision-Making Under Section 16.9 of the Divorce Act, a person who has parenting time or decision-making responsibility with respect to a child and who intends to relocate with the child must notify any other person who has parenting time, decision-making responsibility, or con - tact with the child of their intention to relocate in the form of a “Notice of Relocation”. The Notice of Relocation must be provided at least 60 days prior to the expected date of the proposed relocation. It must set out the expected date of relo - cation, the address of the new place of residence, contact information for the moving parent/child, and a proposal as to how parenting time, decision-making responsibility, or contact will be exercised by the non- moving party if relocation is permitted. A person with parenting time or decision-making responsibility with a child who receives a Notice of Relocation must object within 30 days if they oppose
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