Relocation / Mobility / Change of Child's Residence Under the Family Law Act

Q: Am I able to move somewhere else with my child? Do I have to inform the court of my intention? 

A: The short answer is, it is recommended to advise the other guardian(s) of your intention to move. If other guardian(s) consents (agrees) to the move, then you do not have to make a court application (ask the court for permission) to move. 

If, however, the other parent does not consent to your move, then you will likely have to file a court application in order to move. 

Step 1: Determine whether there are any existing court orders in relation to custody / care of the children / parenting time / guardianship. In general, only a guardian can expect to have success in moving with the child. If you are not a guardian, then you might consider applying to be appointed as a guardian prior to attempting to move. 

Step 2a: If there is not an order existing at the time that you intend to move, then your case will be assessed under section 46 of the Family Law Act. This analysis essentially focuses only on whether the move is in the "best interests" of the child. This analysis is called "change of the child's residence". 

Step 2b: If there is an order existing at the time that you intend to move, then your case will be assessed under section 69 of the Family Law Act. This analysis is more nuanced and involves the use of "legal presumptions". This analysis is called "relocation". 

*If your case will be assessed under section 69, then you are required to give 60 days' written notice to the other guardian. If the other guardian does not object, then you will not be required to make a court application. If the other guardian does object, then you will have to make a court application. 

If the court order provides that both guardians have "substantially equal parenting time" (for e.g., "shared parenting" via week on/week off schedule), then the relocating guardian must prove that the proposed move is done in "good faith", satisfy the court that there is a reasonable plan that will address maintaining the bond between the child and the other guardian, and that the move is in the child's "best interests". There is caselaw on the indicators of what "good faith" means. 

If the court order does not provide that both guardian have "substantial equal parenting time" (i.e., that one parent is the primary caregiver), then the relocating parent must show the court that the proposed move is done in "good faith" and satisfy the court that there is a reasonable plan that will address maintaining the bond between the child and the other parent. At this point, the "legal presumption" is triggered and the move is presumed (assumed) to be in the child's best interests unless the other guardian can prove to the court that it is not.

Note: you can apply for relocation under the Divorce Act. The rules for relocating under the Divorce Act are similar to the regime under the Family Law Act but there are some differences. 

Note: you can make the relocation / mobility / change of child's residence to the Supreme Court or the Provincial Court. There are differences in the practical effect of applying to either court.