Relocation | User

Mobility Rights or Relocation Rights

Given the "new norm" of raising children in separate households, children of separated parents must choose a parenting plan (sometimes called an access schedule) that their kids will adhere to. According to Ontario legislation, the most important factor to take into account when choosing a parenting strategy for children is what is in their "best interests."

Parenting plans can be as simple or as complex as the parents want. However, a number of issues and contributing factors may arise when one parent chooses to relocate a considerable distance from the other parent. "Mobility rights" or "relocation rights" are triggered when a parent wishes to relocate with their child or children; these situations are referred to 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.

Change in Recidence

A "change in residence" describes situations in which a move is occurring that is not very noteworthy. The decision of whether an action is "significant" is made on an individual basis because there are no set criteria or boundaries. If the child's relationship with the other (non-moving) parent or party will be "significantly impacted" by the address change, then the move will be considered "significant."

Any parent or party having decision-making authority or parenting time with a child is required by statute to notify any other person with decision-making authority, parenting time, or contact rights with that kid in advance of an intended move.

It is necessary to give written notice that includes the new address, any updated contact details, and the anticipated date of the change.The amount of time that must pass before this notification or a change in residency must be given is not set in stone.

Relocation

A "relocation" is defined as a change in a child's domicile or the residence of a person who has parenting time or decision-making authority over the child, which is likely to have a major effect on the kid's connection with the other parent or other pertinent party.

According to the statute, any parent or other party with decision-making authority or parenting time with a child must notify any other party with decision-making authority, parenting time, or contact rights with that kid in advance of an intended move.

Written notice of a relocation must be given at least sixty (60) days before the anticipated relocation date. The notice must include the anticipated date of the intended move, the new address, any updated contact details, and a comprehensive proposal outlining the potential new parenting plan in light of the move. Parties may give notice in accordance with the Divorce Act using a specific form.

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.

Facotors 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.