Parental Relocation or Abduction?

airplane representing relocation of child in child custody dispute

Written on behalf of Shariff & Associates

Parents may consider relocating for many reasons, including a job change or being closer to a new romantic partner. If the move is to a location significantly far away from the other parent, it is considered a “parental relocation.” For separating or divorced parents, the process of relocating is subject to the court’s approval. Potentially depriving a parent of having access to their child is a serious issue and must be done lawfully. Otherwise, parents may risk being charged with parental abduction, a criminal offence under the Criminal Code.

Legal process for parental relocation

As of March 2021, a separating or divorced spouse who wishes to relocate with their child must submit a completed Notice of Relocation to the other parent. This must be done a minimum of 60 days before the move. If the other parent objects to the relocation, they must do so within 30 days of receiving the notice. If an objection is filed, the issue must be dealt with in court before the parent is permitted to relocate with the child.

The recent changes to the Divorce Act have added a variety of factors that the Court should consider when making a decision regarding relocation, most of which relate to the principle of the best interest of the child as well as consideration of any pre-existing agreements or court orders. If the relocation is allowed, the parent is granted an Order from the court that permits them to proceed.

Ontario’s Children’s Law Reform Act lays out the rules around relocation for common-law (unmarried) parents or couples who are not divorced or in the process of divorcing. The Children’s Law Reform Act provisions largely echo those under the Divorce Act. However, if the parents do not have a parenting or separation agreement and one parent does not have any parenting responsibilities, they do not need to be notified of a relocation.

Relocation in situations involving family violence

In some situations, a parent may need to relocate with the child due to a history or threat of family violence. The court can provide exceptions to the rules around notices of relocation if there is proof of abuse or violence. If these exceptions are made, the parent with primary decision-making authority can relocate a child without the other parent’s consent.

What is parental abduction?

If a parent is legally required to obtain the other parent’s consent to relocate with the child and proceeds without obtaining consent or a court order, they may risk being charged with parental abduction. Parental abduction is a criminal offence under the Criminal Code:

282 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a child under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that child, in contravention of a custody order or a parenting order made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that child, of the possession of that child is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

If a child is abducted by their parent, the other parent or guardian can seek a court order to return the child to their care.

Child’s best interest can be the line between abduction and relocation

In the 2021 case of Fawcett v. Slyfield, the Ontario Court of Justice allowed a parent to relocate with her children, even though she did not satisfy the legal requirements for relocation. This case demonstrates that a court’s primary consideration in relocation cases is the child’s best interests.

The two parents in Fawcett lived together from 2011 until their separation in 2021. Before their separation, they had planned to relocate the family from Woodstock, Ontario, to another home in Brandon, Manitoba. The mother’s parents resided in Manitoba, and she had purchased a new home there in preparation for the move.

Following the separation, the father no longer wanted the children to be relocated to Manitoba. However, the mother went through with the relocation. The father was actively involved in the children’s lives and had parenting time (access), but the mother had primary decision-making authority.

The Court noted this was a unique case as the father initially consented to the move and withdrew his consent later. The Court found that allowing a temporary relocation order would be in the children’s best interests since their habitual residence (their home in Woodstock) had already been sold, and the move would allow them to start school on time. The Court also outlined the father’s parenting time and the requirement of the mother to facilitate this access.

Contact Shariff & Associates for Advice on Parental Relocation

The decision to relocate with a child can quickly become contentious, particularly when it causes a reduction in a parent’s parenting time. At Shariff & Associates in Stouffville, our experienced family lawyers work hard to protect the parent-child relationship and preserve the children’s best interests.

Shariff & Associates is the largest family law firm in Stouffville and assists clients in Markham and throughout the Greater Toronto Area. We also serve historically under-serviced communities, including Ajax, Brooklin, Aurora, Newmarket, Uxbridge, Whitby, Oshawa, Mount Albert, Ballantrae and Zephyr. To schedule a confidential consultation with a compassionate family lawyer, call us at 905-591-4545 or reach out online.