You are separated or divorced with a child living with you. Your ex has been given access rights (now called parenting time) to the child by way of a court order or a separation agreement that you signed. You may or may not have what was previously known as ‘sole custody’.

You now want to move from Ontario for reasons of your own. These may include a new relationship with a person living in another place, a new job that will enhance your life and that of your child/children, or simply that you came from another country, have few significant connections in or to Ontario, and want to return ‘home’ with your child. Can you just pack your bags and leave?

The simple answer is – No you cannot.

In 1996 the Supreme Court of Canada issued a very important decision in a case called Gordon v. Goertz. That decisions set the parameters throughout Canada for how and when a parent could relocate with a child or children. There were threshold tests to be met and a serious focus on the ‘best interests of the child’. That case provided the guidelines for anyone who wanted to take their child/children and move away from wherever the other parent was located. It was a difficult, expensive and time-consuming task to have a court determine your future and the place to where you might be able to relocate.

Recent amendments to Canada’s Divorce Act brought significant changes to the relocation process as of March 1, 2021. Those changes have now been incorporated into the Children’ Law Reform Act of Ontario for those of you who are divorced or never married and provide a level of consistency to the relocation process.

The first significant change was to eliminate the use of the words ‘custody’ and ‘access’. We now use terms such as ‘parenting time’, ‘decision making responsibility’, and ‘parenting orders’ of the court.

There is a distinct distinction between those situations wherein someone wishes to move to a nearby location and where someone wished to relocate to a new place which will significantly impact on the child’s relationship with the left-behind parent who has a say in decision-making and who has a right to parenting time with the child/children.

The legislation now dictates that the parent who wishes to relocate must give written notice to the other parent setting out the date on which the change is expected to occur and the address of the new residence and new contact information. This notice, which is likely to have a significant impact on the child’s relationship with the left-behind parent, must be given at least sixty days in advance and be on the form prescribed by the regulations to the new legislation. It must also include a proposal as to how contact between the child and the left-behind parent could be exercised, and any other information prescribed by the legislation. The other parent has a statutory right to object within a prescribed period of time which will likely lead to a determination by a judge.

The new rules still require courts to examine and consider the best interest of the children, but also provides that the court will assess where the child’s habitual residence might be deemed to exist at the time of a relocation.

If a parent just relocates outside their present location with the child without following this new prescribed procedure, then the Hague Convention on International Child Abduction will apply, and the abducting parent will be subject to the sanctions dictated by international law.

The bottom line here is to know what you need to do to follow the prescribed process, and not open yourself up to the label of a kidnapper or child abductor.

Consult with a lawyer and the most experienced lawyers in this area of law can be found at BOOKMAN LAW. Call us at 416 – 488-2243, or email me at [email protected].

We can and will help you achieve your goal be it seeking permission to move or blocking your ex from leaving the jurisdiction with the child.

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