Child Relocation Comparative Guide

1. Legal framework

1.1 What local legislative and/or regulatory provisions govern child relocation in your jurisdiction?

Family law in Canada operates within a complex jurisdictional framework. Under the Canadian Constitution:

• provinces and territories have authority over "property and civil rights"; and
• the federal government has jurisdiction over divorce.

This division of powers leads to overlapping legislation, with both levels of government enacting laws that sometimes differ significantly across provinces and territories.

In Ontario, the Children's Law Reform Act, RSO 1990, c C 12, applies to parents who are not married or who have not claimed a divorce.

1.2 Do any bilateral or multilateral instruments or treaties with effect in your jurisdiction have relevance to child relocation?

Yes. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction has been adopted into Ontario law by virtue of Section 46 of the Children's Law Reform Act. Section 46(5) states: "An application may be made to a court in pursuance of a right or an obligation under the convention." The convention itself is reproduced as a schedule to the Children's Law Reform Act and is therefore fully part of Ontario family law.

1.3 Which administrative bodies are responsible for implementing and enforcing the applicable regime in your jurisdiction? What is their general approach in doing so?

The Ontario Ministry of the Attorney General serves as the central authority for implementing the Hague Convention on the Civil Aspects of International Child Abduction (pursuant to Section 46(4) of the Children's Law Reform Act). However, in the case of international child abductions, it is crucial for foreign residents to retain Ontario counsel experienced in such matters, rather than relying on the attorney general (who will not conduct the case for you).

Upon obtaining a return order, the following agencies will assist with implementation:

• local police;
• the Royal Canadian Mounted Police; and
• Canada Border Services.

These agencies will work together to ensure the safe return of the child to their home jurisdiction.

2. Parental responsibility

2.1 How is the principle of parental responsibility defined in your jurisdiction and what does it encompass?

Part III of the Children's Law Reform Act deals with aspects of parental responsibility. These include:

• parenting time;
• contact; and
• decision making.

Neither Ontario nor the federal jurisdiction (Canada) uses the outmoded terms of 'custody' and 'access'.

2.2 Who has parental responsibility in your jurisdiction and how is it acquired?

In Ontario, parental responsibility is typically shared between parents. However, when parents separate or already live apart and the child resides with one parent with the implied or actual consent of the other, the non-residential parent's decision-making authority is suspended, unless:

• a court order reinstates or modifies their decision-making responsibilities; or
• a separation agreement between the parents addresses parental decision making.

Notably, the suspension of decision-making authority does not affect the non-residential parent's entitlement to parenting time. The Ontario courts:

• prioritise the child's right to maintain a relationship with both parents; and
• tend to preserve parenting time unless the circumstances warrant otherwise.

2.3 How does the regime apply in relation to the following family structures?

Ontario law adopts a neutral approach, treating all children equally regardless of their family structure. The only consideration in all parenting cases is the "best interests of the child" (as per Section 24(1) of the Children's Law Reform Act), which supersedes the nature of the parents' relationship.

(a) Civil partnerships

In Ontario, the concept similar to 'civil partnership' is referred to as 'common-law partnership' or simply 'common-law relationship'.

In 2005, the Canadian government passed Bill C-38, which legalised same-sex marriage across the country. As a result, the term 'civil partnership' is not typically used in Ontario or Canada.

For the purpose of spousal support entitlement, the Family Law Act (Ontario) recognises 'spouses' as including both married couples and unmarried couples who have cohabited continuously for at least three years or are in a relationship of some permanence and have a child together.

So, while the terminology might differ, the concept of a committed, unmarried partnership is indeed recognised in Ontario.

(b) Blended families

No difference.

(c) Adoption

Once a child is adopted, that child becomes the child of those adopting parents for all purposes. Other parents generally no longer have any legal standing unless a court has made an 'openness' order that permits contact with the birth parent(s).

(d) Surrogacy

The Children's Law Reform Act has special provisions that address surrogacy and what standing such surrogates may have. This is a complicated part of the Children's Law Reform Act and accordingly we refer to the reader to Sections 5 to 11 of the act.

(e) Same-sex parents

Parents in Ontario may be of the same gender. It makes no difference under the Children's Law Reform Act.

3. Permission to relocate

Both Canada and Ontario amended their respective legislation to address parental relocation, with these amendments coming into effect on both levels on 1 March 2021. For divorce cases, we have reference to Sections 16.8, 16.9, 16.9, 16.92, 16.93, 16.94, 16.95 and 16.96 of the Divorce Act. Where divorce is not an issue, the Ontario Children's Law Reform Act applies – specifically, Sections 39.1, 39.2, 39.3 and 39.4. The provisions of both are the same.

3.1 When must a parent seek permission to relocate and from whom? Does this vary depending on:

1. Whether the parent is planning to relocate within the jurisdiction or outside the jurisdiction?
2. Whether the removal is temporary or permanent?

Less stringent requirements apply where a parent is merely changing their residence and the change will have no material effect on parenting time. However, where a move will amount to a relocation that will likely affect parenting time, notice provisions do apply, regardless of whether the intended move is to the next city, the next province, across the country or to another country. It further does not matter whether the moving parent claims the relocation is temporary or permanent.

The moving parent must give notice on a prescribed government form at least 60 days prior to the intended move (Section 39.3(1) of the Children's Law Reform Act,). The notice must provide particulars including:

• the expected relocation date;
• the new address and contact information; and
• proposals on the following, given the new location:
• • decision making;
  • parenting time; and
  • contact.

The left-behind parent has 30 days to formally respond and register any objections, being sure to give full reasons for the opposition and the proposed parenting plan of the leaving parent (Sections 39.3(5) and (6) of the Children's Law Reform Act).

Section 39.4(2) of the Children's Law Reform Act grants the departing parent the permission to leave even absent a court order if the left-behind parent does not deliver their objection within 30 days. There could easily be arguments as to whether the person delivered the objection on a timely basis. We would therefore advise the left-behind parent to bring a court application immediately – it's better to be safe than sorry.

3.2 If the other parent agrees to the relocation, what formal requirements apply in this regard?

There are no formal requirements. However, it is always a good idea to have a court order or a separation agreement on hand to prove the legality of the move. Memories do tend to fade.

3.3 Where permission to relocate is refused by the other parent, either fully or partially, what avenues are open to the relocating parent to resolve the issue?

The relocating parent has the right to have the matter judicially determined. Section 39.4(3) of the Children's Law Reform Act alerts the court to some specific factors that are in addition to the general 'shopping list' of factors in Section 24, including:

• the reasons for the relocation;
• the impact of the relocation on the child;
• the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child's life of each of those persons;
• whether the person who intends to relocate the child has complied with:
• • any applicable notice requirement under Section 39.3; and
  • any applicable act, regulation, order, family arbitration award and agreement;
• the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things:
• • the location of the new residence; and
  • travel expenses; and
• whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

3.4 What are the legal consequences of failure to obtain permission to relocate?

Unfortunately, not all Ontario courts will reverse the relocation if a parent simply moves without court permission in the face of the other parent's written objection. The courts will always examine the child's best interests and decide accordingly.

4. Relocation applications

4.1 With which bodies are relocation applications filed?

The Ontario Court of Justice or the Ontario Superior Court of Justice.

4.2 What are the formal requirements for filing a relocation application?

Generally speaking, one simply brings a 'motion to change' if there is already a court order. Otherwise, one brings an 'application'.

4.3 How does the process unfold and what are the typical timeframes?

The relocation process unfolds similarly to other family court cases in Ontario. Absent urgent circumstances, parties must navigate the standard litigation process, which can result in varying timelines for completion. Notably, delays exceeding one year are common in densely populated areas such as the Greater Toronto Area.

In exceptional cases, a party may seek and obtain permission for relocation through an interim motion. If granted, this interim decision can, for all practical purposes, determine the final outcome.

4.4 What costs are involved in filing a relocation application?

The costs associated with filing a relocation application in Ontario primarily consist of legal fees. These fees vary widely depending on the lawyer's experience, skill level and location.

Hourly rates for family law lawyers in Ontario range from approximately C$200 to C$900 per hour. Total costs can add up quickly, depending on:

• the complexity of the case;
• the number of court appearances; and
• the level of negotiation required.

4.5 How are the following factors weighed in deciding on a relocation application?

1. The views and preferences of the child
2. The age and maturity of the child
3. The needs of the child
4. The importance of family unity
5. The loss of a relationship with the remaining parent
6. The desire of the relocating parent to move
7. How settled the child is in the home jurisdiction
8. The parents' immigration status and ties to both the jurisdiction and the jurisdiction of relocation
9. The relocating parent's plans post-relocation
10. Other

All of the above factors are very relevant in Ontario law. We have reference to Sections 39.4(3) and 24 of the Children's Law Reform Act: combining those two sections will reflect the above factors.

4.6 On what grounds can the application for relocation be opposed and by whom?

Pursuant to Section 39.3(5) of the Children's Law Reform Act, anyone who receives a relocation notice and has decision-making authority or parenting time may challenge the proposed relocation. The paramount consideration remains the child's best interests.

However, the presence of a previous order or separation agreement with a relocation restriction can significantly impact on the outcome. Similarly, the existing parenting time arrangement plays a crucial role. Under Section 39.4(5) of the Children's Law Reform Act, if an equal parenting time regime is in place, the dynamics of the relocation application shift.

Where one parent has the vast majority of parenting time, the burden of proof lies with the left-behind parent to demonstrate that the relocation would not be in the child's best interests (Section 39.4(6) of the Children's Law Reform Act). This highlights the importance of negotiating a relocation restriction in the initial agreement, particularly for parents with limited parenting time.

4.7 If the application to relocate is granted, can this be made subject to conditions or restrictions?

Yes, relocation orders in Ontario can be made subject to conditions or restrictions. These can be negotiated between parties or argued for in court.

One condition that we like to include is a requirement for the relocating parent to consent to a 'mirror order' being granted in the new jurisdiction. This ensures that the existing parenting arrangement is replicated in the new location, facilitating enforcement if needed. Additionally, we would stipulate that the relocating parent bear the legal costs associated with obtaining the mirror order.

5. Child abduction

5.1 Is child abduction a criminal offence in your jurisdiction? If so, how is it defined and what does it encompass?

Yes, child abduction is indeed a criminal offence in Canada. It is defined and encompassed in several provisions of the federal Criminal Code, primarily Sections 280–283.

Definition and scope: 'Child abduction' in Canada generally refers to the taking, enticing away, concealing, detaining, receiving or harbouring of a person under the age of 14, with the intent to deprive a parent or guardian of possession of that child.

Specific provisions:

• Section 283 of the Criminal Code deals with abduction by a parent, guardian or person having lawful care or charge of a child under 14 years old.
• Section 281 addresses the abduction of a person under 14 by someone who is not a parent or guardian.
• Section 282 covers abduction in contravention of a custody order.

Elements of the offence: The actus reus (physical act) must include the following elements:

• The child must be under 14 years old.
• The accused must have taken, enticed away, concealed, detained, received or harboured the child.
• This action may be in contravention of a custody order or without one.

The mens rea (mental element) requires intent to deprive a parent or guardian of possession of the child.

Severity and sentencing:

• Child abduction is considered a serious offence in Canada.
• It can be prosecuted as an indictable offence with a maximum sentence of up to 10 years' imprisonment.
• The courts have emphasised the need for general deterrence and denunciation in sentencing for these offences.

Key points:

• Parental abduction is included in this offence. A parent can be convicted of abducting their own child, even if they believe that this is in the child's best interests.
• The offence is seen as harmful both to the abducted child and to the left-behind parent.
• It is considered a continuing offence, encompassing both the initial taking and the subsequent confinement of the child.
• Canada's commitment to addressing this issue is evidenced by its being a signatory to the Hague Convention on child abduction.

Consent and age:

• The child's consent is generally not a defence, especially for younger children.
• However, for older children (approaching 14), their capacity to consent might be considered in some cases, depending on their maturity and understanding.

Context:

• These laws aim to:
• • protect children;
  • maintain respect for the justice system; and
  • uphold the rights of parents or guardians who have lawful custody.
• They also seek to prevent parents from circumventing family court decisions through abduction.

In conclusion, child abduction is treated as a serious criminal offence in Canada, encompassing a wide range of actions that deprive a parent or guardian of possession of a child under 14. The law recognises the profound impact that such actions can have on children and families, and the courts have emphasised the need for strong deterrence in these cases.

5.2 What are the likely penalties for this criminal offence?

It is advisable to consult with a criminal defence lawyer for an answer to this question.

5.3 Where a child has been abducted to your jurisdiction, what steps can be taken to secure his or her return? Should the left-behind parent pursue these steps in the home jurisdiction or your jurisdiction?

When a child is abducted to Ontario, Canada, the left-behind parent should engage local legal counsel to navigate the Canadian legal system. While obtaining a foreign court order (a 'chasing order') might seem logical, its utility in Canada is limited.

The Canadian courts prioritise the child's best interests and require separate legal proceedings to address custody and potential return in abduction cases. A foreign order may be considered as evidence, particularly if the foreign jurisdiction is a Hague Convention signatory. However, this does not circumvent the need for Canadian legal processes.

To secure the child's return, the left-behind parent should:

• engage Ontario legal counsel experienced in international child abduction cases;
• initiate proceedings under the Hague Convention (if applicable); and
• seek a court order in Canada for the child's return.

5.4 How do these processes unfold and what are the typical timelines?

Regardless of whether the child's habitual residence is in a Hague Convention signatory country, the initial step in responding to a child abduction to Ontario is to consult with Ontario family law counsel.

The timeline for resolving these cases varies significantly across Ontario. Parties should be prepared for potential delays, as counsel for the abducting parent may employ various tactics to prolong the process. These tactics may include:

• seeking the appointment of independent counsel for the child;
• requesting a comprehensive parenting assessment; and
• pursuing other procedural motions.

It is essential to remember that the Hague Convention aims to have the case adjudicated on its merits in the jurisdiction with the strongest connection to the child. This principle is supposed to guide the process and should inform the court's decision making.

5.5 What costs are involved for the left-behind parent?

The costs for a left-behind parent in a child abduction case in Ontario can be substantial. These costs may include the following:

• Legal fees: Hourly rates for family law lawyers in Ontario range from approximately C$200 to C$900 per hour, depending on experience and location.
• Disbursements: Additional costs for expenses such as court filing fees, process serving and expert reports.
• Travel and accommodation: If the left-behind parent needs to travel to Ontario to participate in court proceedings or to reunite with the child.
• Translation and interpretation fees: If documents or testimony require translation or interpretation.

It is essential for left-behind parents to consult with an Ontario family law lawyer to discuss potential costs and explore available options for managing expenses.

5.6 What factors will the court consider in deciding on an order to return the child? What defences are available for the return of child to the home jurisdiction?

Factors that the courts will consider in cases of child abduction to Ontario include the following:

• Best interests of the child: This is the paramount consideration in any decision affecting children, including return orders.
• Child's habitual residence: The court will assess where the child was habitually resident before the alleged wrongful retention or removal.
• Evidence availability: The court will consider whether substantial evidence concerning the child's best interests is available in Ontario.
• Connections to jurisdictions: The court will examine the child's connections to both jurisdictions, including factors such as:
• • schooling;
  • medical care; and
  • permanent home.
• Timing of proceedings: While not determinative, courts may consider when proceedings were commenced in different jurisdictions.

Defences that abductors have successfully raised include the following:

• Risk of harm: If there is a risk of serious harm to the child upon return, this may be grounds for refusing to order the return.
• Child's objections: In some cases, particularly with older children, the court may consider the child's objections to being returned (implied in F v N, 2022 SCC 51, discussion of best interests).
• Consent or acquiescence: If the left-behind parent consented or subsequently acquiesced to the removal or retention, this may be a defence.
• Settlement in new environment: If a significant period has passed and the child has become settled in their new environment, this may be considered.
• Human rights and fundamental freedoms: If the return would not be permitted by fundamental principles relating to the protection of human rights and fundamental freedoms, this may succeed as a defence.

Courts may use protective measures, such as undertakings, to mitigate potential risks and facilitate the child's return.

5.7 Apart from an order to return the child, what orders are typically made in these processes for all parties involved – the child, the left-behind parent and the abductor?

Apart from an order to return the child, courts typically make several other types of orders in child abduction cases for the parties involved, including the following:

• For the child:
• • Orders for psychological support or counselling;
  • Orders for maintaining contact with both parents during proceedings; and
  • Orders for the child's safety and wellbeing during the return process.
• For the left-behind parent:
• • Orders for the reimbursement of travel expenses (Article 26 of the Hague Convention);
  • Orders for legal costs and representation fees;
  • Orders for costs incurred in locating the child; and
  • Orders for expenses related to returning the child.
• For the abductor:
• • Orders to pay necessary expenses incurred by the left-behind parent;
  • Protective orders or undertakings to ensure the safe return of the child;
  • Orders restricting travel or requiring surrender of passports; and
  • Orders for supervised access or visitation.
• General orders:
• • 'Chasing orders' or 'mirror orders' to be recognised in the foreign jurisdiction;
  • Orders for ongoing communication between parents; and
  • Orders for temporary custody arrangements pending final resolution.
• Protective measures:
• • Undertakings or 'protective measures' to address potential risks or obstacles to return;
  • Orders for facilitating contact between the abducting parent and child after return.
• Financial orders: To address obstacles to the primary caregiver's return

The specific orders made can vary depending on:

• the circumstances of each case; and
• the jurisdiction involved.

The courts aim to balance the need for the child's return with ensuring the child's safety and wellbeing throughout the process.

5.8 Will any other government authorities be involved or called for assistance?

Several government authorities may be involved or called for assistance in cases of child abduction to Ontario:

• Police services:
• • Local police forces in Ontario;
  • The Ontario Provincial Police (OPP); and
  • The Royal Canadian Mounted Police (RCMP).
• Border Services and Immigration:
• • The Canada Border Services Agency (CBSA); and
  • Immigration, Refugees and Citizenship Canada (IRCC)
• International agencies:
• • INTERPOL's National Central Bureau for Canada.
• Government departments:
• • Global Affairs Canada (for cases involving international abduction);
  • The Ontario Ministry of the Attorney General; and
  • The Ontario Ministry of Children, Community and Social Services
• Child protection services:
• • Local children's aid societies.
• Specialised units:
• • The Missing Children's Registry; and
  • National Missing Children Operations of the RCMP.

These authorities may be involved in various capacities:

• Law enforcement: Local police, the OPP and the RCMP may be involved in:
• • locating the child;
  • investigating the abduction; and
  • potentially, arresting the abductor.
• Border control: The CBSA and IRCC may assist:
• • in preventing the child from being taken out of the country; or
  • in cases where the child has been brought into Canada.
• International cooperation: INTERPOL can aid in coordinating with international law enforcement agencies if there is a risk of the child being taken out of Canada.
• Diplomatic assistance: Global Affairs Canada may provide support in cases of international abduction, especially in dealing with foreign governments and legal systems.
• Child welfare: Children's aid societies may be involved in ensuring the child's safety and wellbeing once located.
• Legal processes: The Ontario Ministry of the Attorney General (Office of the Children's Lawyer) may be involved in legal proceedings related to the abduction.
• Specialised search: The Missing Children's Registry and National Missing Children Operations can provide specialised resources and coordination for locating abducted children.

The level of involvement of these authorities can vary depending on the specific circumstances of the abduction case, such as:

• whether the abduction is domestic or international;
• the age of the child; and
• the potential risks involved.

6. Trends and predictions

6.1 How would you describe the current child relocation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The current landscape is as outlined in this Q&A. As for the coming 12 months, there are no indications of any anticipated legislative reforms at the provincial or federal level.

One may speculate that with the rise of remote communication technologies, courts may give more weight to how these can facilitate ongoing relationships with both parents in relocation cases. There may be a trend towards giving more weight to older children's preferences and objections in relocation decisions.

7. Tips and traps

7.1 What are your top tips for seeking the return of a child in your jurisdiction and what potential sticking points would you highlight?

Top tips:

• Act quickly: Time is of the essence in child abduction cases. Initiate legal proceedings as soon as possible after the abduction occurs.
• Utilise the Hague Convention: If the child has been abducted from a Hague Convention signatory country to Ontario, initiate proceedings under the convention for a prompt return.
• Gather comprehensive documentation and evidence: Collect all relevant documents (eg, custody orders, birth certificates). 'Habitual residence' is a crucial factor. Provide clear evidence of:
• • the child's habitual residence; and
  • your custody rights in the home jurisdiction (eg, expert evidence from your home jurisdiction).
• Explain fully any potential harm to the child if not returned.
• Focus on the child's best interests: Courts prioritise the best interests of the child. Frame your arguments in this context, emphasising the child's connections to their habitual residence.
• Be prepared for potential defences: Anticipate that the abducting parent may raise defences, such as:
• • claims of domestic violence; and/or
  • the child's objections to return.
• Be prepared to meet those arguments. You will have to demonstrate that your home jurisdiction is fully equipped to respond to violence allegations.
• Consider protective measures: Be the first one to suggest or accept undertakings or protective measures that address any concerns about the child's return.
• Maintain detailed records: Document:
• • all attempts to contact the child and the abducting parent; and
  • any expenses incurred due to the abduction.
• Engage experienced legal counsel: Work with lawyers who specialise in international child abduction cases and are familiar with Ontario family law.

Potential sticking points:

• Determining habitual residence: Courts may struggle to determine the child's habitual residence, especially if there is a history of frequent moves.
• Jurisdictional disputes: Conflicts between different jurisdictions can complicate and delay the return process.
• Integration into new environment: If significant time has passed and the child has become settled in their new environment, this could impact the court's decision.
• Risk of harm: If the abducting parent can demonstrate a grave risk of harm to the child upon return, this could prevent or delay the return.
• Child's objections: For older children, their objections to being returned may be considered by the court.
• Consent or acquiescence: If there is any evidence that you consented to or acquiesced to the child's removal, this could complicate the return process.
• Parent's mental health concerns: If there are allegations of mental health issues affecting either parent, this could complicate the proceedings.
• Cultural considerations: In cases involving different cultural backgrounds, courts may need to consider cultural factors in determining the child's best interests.
• Enforcement challenges: Even if a return order is granted, enforcing it across international borders can be challenging.
• Delays in legal proceedings: Child abduction cases can be time sensitive, but legal processes may not always move as quickly as desired, potentially impacting the child's situation.
• Emotional and psychological impact: Child abduction cases can be emotionally charged and parties may need to manage their emotions while navigating the legal process.

Remember, each case is unique and these tips and sticking points may vary depending on the specific circumstances of the abduction case. It is crucial to work closely with legal professionals experienced in international child abduction cases for the best possible outcome.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.