Family and Divorce Law
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Can you move to a new city with your child after separation just because the child lives mostly with you? Not always. Under the Divorce Act, a parent planning a relocation must usually give at least 60 days’ notice, and the other parent has 30 days to object. This guide and video walk through the notice, objection and court rules in ss. 16.9 to 16.93. This is general information only, not legal advice.
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If you are married, separated or divorced and you have parenting time or decision-making responsibility, the Divorce Act has special rules for relocations. Under section 2(1), a relocation is a change in the child’s place of residence that is likely to have a significant impact on the child’s relationship with a person who has parenting time, decision-making responsibility or contact. So the question is not only how far you move, but what the move is likely to do to the child’s relationships.
Under s. 16.9(1), a person with parenting time or decision-making responsibility who intends to relocate must give notice, in the prescribed form, at least 60 days before the expected date of the move. The notice goes to anyone else with parenting time, decision-making responsibility, or contact under a contact order. Under s. 16.9(2), the notice must include:
Under s. 16.9(3), a court may waive or modify these requirements, including where there is a risk of family violence.
Under s. 16.91(1), the relocation may happen on the date in the notice only in two situations:
To object, the other person must use the prescribed form or apply to court. A move without following these steps can lead to serious consequences, so the process should be followed carefully.
If the matter goes to court, the judge decides whether the relocation is in the best interests of the child. Section 16.92 adds relocation-specific factors to that analysis, such as the reasons for the move, its impact on the child, and whether proper notice was given. In Barendregt v Grebliunas, 2022 SCC 22, the Supreme Court of Canada confirmed that the central question is whether the relocation is in the best interests of the child.
Section 16.93 sets out who bears the burden of proof, and it depends on the existing order or agreement:
Because the starting point can change the outcome, it is worth reviewing your order or agreement before you plan a move.
The Divorce Act applies to married spouses. If you were never married, the Divorce Act does not apply. Unmarried parents are covered by provincial law in British Columbia and Ontario, which has its own relocation rules.
Sources: Divorce Act, RSC 1985, c 3 (2nd Supp), ss. 2(1), 16.9, 16.91, 16.92 and 16.93; Barendregt v Grebliunas, 2022 SCC 22. Laws and cases change, so check the current version before acting.
Not always. Under the Divorce Act, a parent planning a relocation must usually give at least 60 days’ notice, and the other parent has 30 days to object.
Under s. 2(1), it is a change in the child’s place of residence that is likely to have a significant impact on the child’s relationship with a person who has parenting time, decision-making responsibility or contact.
Under s. 16.9(1), at least 60 days before the expected date of the move, in the prescribed form.
Anyone else with parenting time, decision-making responsibility, or contact under a contact order.
Under s. 16.9(2), the expected date, the new address and contact information, and a proposal for how parenting time, decision-making responsibility or contact could be exercised.
Yes. Under s. 16.9(3), a court may waive or modify them, including where there is a risk of family violence.
Under s. 16.91(1), only if a court authorizes the move, or the other person does not object within 30 days after receiving the notice and no order prohibits the relocation.
By using the prescribed form or by applying to court.
The best interests of the child. Section 16.92 adds factors such as the reasons for the move, the impact on the child, and whether proper notice was given.
In Barendregt v Grebliunas, 2022 SCC 22, it confirmed that the question is whether the relocation is in the best interests of the child.
Under s. 16.93, it depends on the order or agreement. With roughly equal time, the parent who wants to move must show it; with the vast majority of time to the moving parent, the other parent must show it is not; in other cases both share the burden.
No. Unmarried parents are covered by provincial law in BC and Ontario, which has its own relocation rules.
No. This is general information only. Every situation is different and no outcome is guaranteed.
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Planning a move with your child, or received a relocation notice? Book a confidential consultation with Pax Law Corporation. You can also see our family law services in British Columbia and family law services in Toronto.
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Disclaimer: This article is general information only and is not legal advice. Every situation is different and no outcome is guaranteed. It reflects Canadian law as of the date of publication, and laws change. Past results do not predict future outcomes.
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