Can a Parent Move a Child to Another Province or Country in Ontario?

When a couple with children separates or divorces in Ontario, parenting arrangements are based on the circumstances at the time and the best interests of the children.

Family law in Ontario is flexible enough to allow for the inevitable “life changes” that affect parents but there are strict procedures to follow if substantial changes are required.

Relocating to another province or country is a major upheaval for any child, so it’s essential to understand your legal responsibilities as a parent before doing so. The rights of the child, the rights of the other parent, and other factors must also be considered in this potentially complex scenario.

Let’s take a deeper look at this issue.

Whether you’ve been offered a new job, a “second chance” at marriage, or another opportunity, moving a child out of the province and away from the other parent is not a decision to take lightly.

The consequences of getting your decisions wrong can be significant. If the matter ends up in court:

•         The court may order the child’s immediate return to Ontario.
•         You could lose parenting time or see it significantly reduced.
•         You could be liable for significant legal fees (including the other parent’s).
•         Your credibility in any future parenting proceedings may be questioned.
•         You could even be liable for parental abduction charges (Section 282 of the Criminal Code) in extreme cases.

Moving your child out of Ontario without consulting a qualified family lawyer and following the correct procedure is, therefore, highly inadvisable.

Ultimately, if you share parenting time, legally moving with a child to another province or country requires a 60-day written notice to the other parent, including the expected date of the move, the new address, and a proposed revised parenting plan.

Then you will need to obtain:

•         The other parent’s written consent, or
•         A court order permitting the move.

The presumption in Ontario is that a child’s best interests are served by regular contact with both parents (unless proven otherwise).

In joint parenting time and decision-making responsibility situations, therefore, any steps that could damage the child’s relationship with a parent, like moving away to another province or country, are unlikely to be approved, unless it is in the child’s best interests.

Parenting time and decision-making responsibility disputes often cross provincial or international borders.

“Interjurisdictional custody” laws can be applied when:

•         One parent wants to move with the child.
•         Parents already live in different jurisdictions and are deciding where the child should primarily reside.
•         A parent needs to enforce an Ontario parenting order in another province or country.

Such matters are taken seriously by the courts because of the potential to disrupt a child’s welfare and development. The best interests of the child is the guiding principle in all matters.

In Ontario, the federal Divorce Act and the Children’s Law Reform Act are the main governing legislation.

Once you cross provincial or national borders, different legal systems may apply, but the Ontario courts usually still hold jurisdiction over cases initiated here, even if the parent moves to another province with the child. Canadian provinces generally recognize each other’s parenting or custody orders.

If the other parent doesn’t support your move with the child, and you apply to the Ontario family law courts, a thorough analysis will be conducted based on the best interests of the child.

The moving parent must demonstrate the following:

1. The move serves a legitimate purpose, such as an important job opportunity, the need to care for an aging parent, or to live with a new partner in another location.
2. The move is realistic and well-planned, with a stable living, educational, financial, and social environment for the child.
3. An access plan for the non-moving parent, so that meaningful and ongoing contact is maintained with the child, with travel arrangements (cost sharing), video calling schedules, extended visitation during school breaks, etc.

The non-moving parent may be able to prevent the move by demonstrating the following to the court:

•         The motivation for the move is to disrupt their relationship with the child rather than the stated reason.
•         The move would create excessive instability for the child.
•         The proposed access arrangement is unsatisfactory, unrealistic, or financially burdensome.
•         The child would benefit by remaining in the present environment/community.

After weighing the evidence, the court can decide to:

•         Deny the move.
•         Allow the move as proposed by the moving parent.
•         Allow the move with strict conditions, such as extended access times for the non-moving parent during holidays, the moving parent to pay transportation costs in full, etc.

An intended overseas move with a child complicates matters further.

Countries such as the US, the UK, the UAE, and most European nations are members of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which provides parents with protection against wrongful removal.

Moving a child to these countries without court approval or the other parent’s consent can lead to claims of abduction and an international legal battle that benefits nobody, drags on, and becomes very expensive.

The golden rule when moving with a child is to either get the consent of the other parent in writing or speak to a qualified family lawyer to petition the court for an order granting the move.

Generally, this is what you should do before arranging a move to another province or country with your child:

•         Think through your reasons and strategy: Keep in mind what you must prove in court (legitimate purpose, realistic and well-planned, and an access strategy for the other parent).
•         Gather evidence to support your plan: This might include employment letters, research on schools, housing, and travel plans, a specific access schedule to be confirmed with the other parent, and a breakdown of who pays for what.
•         Present your plan to the other parent: a mutual agreement through discussion and negotiation is usually better than a court-ordered outcome (but make sure everything is in writing).

The difference between a carefully executed relocation plan and a contested hearing where you may not get what you want is preparation and communication.

A family lawyer with experience in relocating with a child can not only help you argue your case before a judge, but can also help you prevent the need for that.

Our experience with the various legal pitfalls when relocating can help prevent many of the mistakes that other parents have made.

We will help you:

•         Assess whether you have a reasonable case to relocate.
•         Formulate a plan that can be discussed with the other parent.
•         Help you negotiate and propose creative solutions (if necessary) with the other parent.
•         Approach the court for approval, if necessary.
•         Gather evidence to present at the hearing.
•         Request temporary orders to be issued in emergencies.

The earlier you speak to a lawyer, the better. Waiting until you’ve purchased flight tickets or signed a lease agreement in the new location is asking for trouble.

For assistance with relocating with a child (or opposing it) in Mississauga, consult with an experienced family lawyer at Amiri Family Law. Book a consultation for advice on your legal options.