Child Relocation 2025 Comparisons

In Ontario a parent’s decision-making power is defined as responsibility for making significant decisions about a child’s well-being, including with respect to health, education, culture, language, religion and spirituality, and significant extra-curricular activities. This is commonly referred to as “decision-making responsibility” and is set out in Section 18(1) of the Children’s Law Reform Act (CLRA).

A birth parent is the person who gives birth to the child. This person is automatically considered a parent (Section 6(1) of the CLRA) and therefore has parental responsibility, which includes the right to make important decisions for the child. This provision does not, however, apply to surrogates who give birth to a child (Section 6(2) of the CLRA).

However, having decision-making responsibility is not necessarily permanent, or an unimpeachable right. Any person with decision-making responsibility for a child must exercise this responsibility carefully. A court can order that a parent relinquish that responsibility if doing so is in the best interests of the child.

If a child was conceived from sexual intercourse, the biological father may automatically be recognised as the parent of the child, if any of the following circumstances apply (Section 7(2) of the CLRA):

• He was married to the birth parent at the time of the child’s birth.
• He was married to the birth parent, but the marriage ended (by death, annulment or divorce) within 300 days before the child was born.
• He was living in a marriage-like (conjugal) relationship with the birth parent before the child’s birth, and the child was born within 300 days after that relationship ended.
• He registered the child’s birth as a parent under Ontario’s Vital Statistics Act, or under a similar law in another part of Canada.
• A court outside Ontario has legally recognised him as the child’s parent.

If the biological father is recognised by law as the parent of the child, he is equally entitled to decision-making, and does not have to meet any other requirements.

Non-Genetic Parent

In Ontario, the term “parent” can mean different things depending on the law being used. Different acts outline different rights.

For example, in Ontario’s Family Law Act (FLA), a parent is not only someone who is biologically related to a child. A person can be considered a parent if they show a clear and ongoing intention to treat the child as their own (Section 1(1) FLA). Note that the Family Law Act does not govern child relocation; the definition of parent is used to determine child support obligations.

Further, under Ontario’s CLRA, a person does not have to be a parent or biologically related to the child to have decision-making responsibility. Someone who is not the child’s parent can apply to a court for a parenting order, and it may be granted if a court determines that it would be in the best interests of the child. This could be a distant relative, such as a grandparent or a step-parent who does not wish to proceed with the formal adoption process.

Assisted Reproduction

If a child was conceived using assisted reproduction such as surrogacy or artificial insemination, certain special considerations apply. For example, if the birth parent conceived the child using assisted reproduction and had a spouse at the time of conception, that spouse will be recognised as a parent. The same is true if the birth parent conceived through insemination using a donor; the spouse at the time of conception will be recognised as a parent.

This provision will not apply if the spouse did not consent to be a parent, or did consent but withdrew said consent before the child’s conception.

The impact of the mother and father being married at the time of conception will differ depending on how the child is conceived.

See 1.3 Requirements for Fathers; the father automatically obtains parental responsibility if married to the birth parent at the time of the child’s birth.

See 1.4 Requirements for Non-Genetic Parents; the relevant time, in terms of obtaining responsibility, for parents who use assisted reproduction is the point of conception.

In 2005, Canada enacted the Civil Marriage Act. This legalised same-sex marriage across Canada and granted same-sex couples equal rights to heterosexual couples. A same-sex couple may become parents through many of the same ways that a heterosexual couple can, including adoption and assisted reproduction.

See 1.4 Requirements for Non-Genetic Parents and 1.7 Adoption.

The requirements to become an adoptive parent vary from province to province. However, an adoptive parent must be over 18, a resident of the relevant province, and pass criminal record and child welfare background checks.

Adoptive parents in Ontario must obtain an adoption order under Section 199 of the Child, Youth and Family Services Act. This is a final order from the courts. From the date of the order, the adopted child becomes the adoptive parents’ child, and the parents assume decision-making responsibility.

Rules and requirements for relocating a child are regulated provincially. In Ontario, if one parent plans to move to a new home with the child, and they have decision-making responsibility, they must give written notice to the other parent 60 days before the proposed move. This notice must include:

• the date they plan to move;
• the new address; and
• updated contact information for themselves and the child.

This notice must be given to anyone who has decision-making responsibility or parenting time with the child. If the non-relocating parent does not respond or object after receiving the notice, their silence is treated as consent.

If the relocating parent cannot obtain consent or acquiescence from the non-relocating parent, or other person with decision-making responsibility for the child, they may bring an application to a court with jurisdiction over the child.

Under Ontario’s CLRA (and equivalent legislation in the other provinces), the court with jurisdiction over the child will be the one in the place where the child is habitually resident. Habitual residence in Ontario is defined as where the child last lived with both parents, unless there is a separation agreement or the child permanently lives with a person who is not a parent. A court will only grant this order if it is in the best interests of the child to do so.

The distance between the child’s current residence and the proposed site of relocation does not impact the standards the court must apply. However, it may impact which factors are given more weight. For example, the further the child will be from the non-relocating parent, the more likely it is that this will influence the child’s relationship with the non-relocating parent, making it difficult for them to build or maintain a strong relationship. This is likely to carry significant weight in the court’s decision as to whether to grant the relocation application. In practice, the shorter the distance of the proposed move, the more likely it is that the application will be granted.

If the relocating parent has not given the required notice to the other parent or other persons with decision-making responsibility for the child, the removal of said child from the jurisdiction will be considered wrongful. This is more commonly referred to as “abduction”, and upon application of the non-relocating parent, the court will most likely order the immediate return of the child.

If the child has been taken out of Canada, the first step is to locate the child. Some contacts that can assist in this are:

• the local police (ask them to contact the RCMP’s National Centre for Missing Persons and Unidentified Remains);
• consular services at Global Affairs Canada;
• the Passport Program;
• Canada Border Services Agency; and
• non-government organisations, such as the Canadian Centre for Child Protection and the Missing Children’s Network.

The second step is to determine if the country the child is located in is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, since Canada is a signatory to this. If the country is not, the left-behind parent can bring an urgent application to the local court to apply for the return of the child. The CLRA provides that a court may make an order to ensure the return of the child if it is satisfied upon application that the child was unlawfully withheld or removed.

If the country is a signatory to the Hague Convention, the left-behind parent can apply to have the child returned to Canada. The left-behind parent or the counsel acting on their behalf should contact the central authority, which will file an “Article 16 notice”, which provides notice of wrongful removal or retention of a child. In Ontario, the central authority is the Ministry of the Attorney General. The central authority will, if satisfied that this is a case where the Hague Convention is operative, forward the application to the central authority in the foreign jurisdiction where the child is being retained. After the left-behind parent commences a Hague Application with the central authority or contacts the central authority, the applicant parent can bring an urgent motion to obtain a chasing order on a without-notice basis, which will enable the applicant parent to obtain an order that will assist in enforcing any return order made when the child is back in Canada.

However, a court may refuse to return a child under the Hague Convention for a number of reasons if the situation falls within its list of exceptions.

Canada is a signatory to the 1980 Hague Convention.

This means that if an abducted child is taken to Ontario the following applies:

• The central authority does not typically represent the left-behind parent/applicant, but it will provide other services free of charge. More commonly, it will facilitate the process of finding a lawyer. Depending on the parents’ financial circumstances, some attorneys may offer their services for reduced fees.
• Ontario and more generally, Canada, rigorously apply the underlying principle of the Hague Convention on the immediate return of the child. They often give deference to the contracting state to respect the importance of international comity and acknowledge that the exceptions listed in Article 13 are to be interpreted narrowly. It is on the abducting parent to establish the high threshold required by Article 13.
• Typically, Hague applications are heard on an expedited basis, being dealt with in six weeks, consistent with Article 11. Some cases may take longer, particularly where a parent files for an appeal. The cost considerations for making a Hague Application are substantially the same as in Section 2.3.8; the largest cost associated with the application is the legal fees parties are bound to incur.

If an abducted child is taken to a country that is not a member of the Hague Convention, the following applies:

• The steps that a parent should take if their child has been abducted to a foreign jurisdiction that is not a member of the Hague Convention are listed under Section 3.2. If the parent is bringing an urgent motion to obtain an order for the immediate return of the child, they will have to do so under the relevant provincial legislation (in Ontario, the CLRA). The moving party will still have to establish that the child was habitually resident immediately before the wrongful removal or retention. The primary difference between an application under the CLRA and the Hague Convention is that Ontario courts have more discretion when deciding whether to assume jurisdiction over the matter. Ontario courts do not have to assume that non-signatory countries have the appropriate protections in place for children if they are returned. In short, there is a lower threshold for Ontario courts to refuse an application for a return order to a country that is not a member of the Hague Convention than to one that is a member of the Hague Convention.

This is not applicable, as Canada is a signatory to the 1980 Hague Convention.