Child Relocation 2026 Comparisons

In Canada, the federal Divorce Act governs decision-making responsibility over children for individuals who are married and divorcing/divorced. Provincial legislation governs decision-making responsibility for all other couples.

Under Section 2(1) of the Divorce Act, the authority to make decisions for a child is referred to as “decision-making responsibility” and includes responsibility for making significant decisions in relation to the child’s health, education, culture, language, religion, spirituality, and significant extracurricular activities.

Equivalent provisions are contained in provincial legislation. For instance:

• Alberta: “decision-making responsibility” as set out in Section 21(6) of Alberta’s Family Law Act;
• British Columbia: “parental responsibilities” as set out in Section 41 of BC’s Family Law Act;
• Ontario: “decision-making responsibility” as set out in Section 18(1) of Ontario’s Children’s Law Reform Act; and
• Quebec: “parental authority” as set out in Article 600 of the Civil Code of Quebec.

Note that “decision-making responsibility” was previously referred to as “custody” prior to amendments to the Divorce Act in 2021.

In Canada, a birth mother is generally automatically recognised as a parent and does not need to meet any additional requirements to obtain decision-making responsibility.

An important exception is surrogacy. See 1.4 Requirements for Non-Genetic Parents.

A father’s rights and responsibilities, including decision-making responsibility, flow from his parentage status. The process for establishing paternity varies by province. In general, a male person will be presumed to be a legal parent in the following circumstances:

• He is listed on the child’s birth certificate.
• He was married to the birth parent at the time of the child’s birth.
• He was living in a marriage-like relationship with the birth parent before and at the time of the child’s birth.
• A court order recognises him as the child’s parent.

In some provinces, a father may also have to prove guardianship in addition to parentage to obtain decision-making responsibility. Parents are generally, but not always, guardians. For example, in Alberta and British Columbia, a father who is not already a guardian may need to satisfy guardianship criteria by proving he regularly cares for the child or intends to do so. In Manitoba, if the parents never cohabited after the child’s birth, the parent with whom the child resides is the only parent with decision-making responsibility (Section 36 of the Manitoba Family Law Act).

Federal Legislation – The Divorce Act

The Divorce Act, which governs spouses who are divorced or divorcing, requires a non-genetic parent to demonstrate that he or she “stands in the place of a parent or intends to stand in the place of a parent” to obtain decision-making responsibility (Section 16.1(1)(b)). This may include a stepparent or a relative, such as a grandparent, who has played a parental role in the child’s life.

Courts will consider the following factors in determining if someone stands in the place of a parent (Chartier v Chartier, [1999] 1 S.C.R. 242):

• whether the child participates in the extended family in the same way as would a biological child;
• whether the person provides financially for the child (depending on ability to pay);
• whether the person disciplines the child as a parent;
• whether the person represents to the child, the family, the world (either explicitly or implicitly), that he or she is responsible as a parent to the child; and
• the nature or existence of the child’s relationship with the absent biological parent.

The non-genetic person will also need to show that it is in the child’s best interests for decision-making responsibility to be awarded to them.

Provincial Legislation

Provincial legislation governs unmarried spouses and married spouses who are separated but not divorcing/divorced. Therefore, the rules for a non-genetic parent to obtain decision-making responsibility vary by province.

In some provinces, such as British Columbia, the key question is whether a non-genetic parent is already a legal parent or guardian. If a non-genetic parent is already legally recognised as a parent or guardian, decision-making responsibility automatically flows. Legal recognition of the non-genetic parent’s status may first be required before any allocation of decision-making responsibility.

In other provinces, like Ontario, there is no requirement that someone be a parent to be given decision-making responsibility. Anyone may apply to the court for decision-making responsibility, and the court will merely consider the child’s best interests.

A biological connection is generally treated as relevant but not decisive, especially in cases where the non-genetic parent has clearly acted in a parental role. As in all cases, the non-genetic parent must satisfy the court that awarding them decision-making responsibility is in the child’s best interests.

Surrogacy/Assisted Reproductive Technology

In Canada, parentage in assisted reproduction cases is a matter of provincial law. Each province has its own statutory framework to establish parentage in assisted reproduction arrangements, which allows for intended parents to be recognised as the child’s legal parents from birth or shortly after birth.

Once parentage is legally established, decision-making responsibility follows the ordinary parental framework in that province rather than being treated as a special exception.

See 1.7 Adoption for adoptive parents.

See 1.3 Requirements for Fathers; in most provinces, the father will be presumed to be the legal parent of the child and will automatically obtain decision-making responsibility if married to the mother at the point of conception or birth.

In Canada, the law applies equally to parents in a same-sex relationship and parents in an opposite-sex relationship.

Adoption is regulated provincially rather than federally. Adoptive parents must first obtain an adoption order under the relevant provincial legislation. For instance:

• Alberta – Section 70 of the Child, Youth and Family Enhancement Act (for the adoption of adult children, Section 2 of the Adult Adoption Act);
• British Columbia – Section 29 of the Adoption Act; and
• Ontario – Section 199 of the Child, Youth and Family Services Act.

Generally, in Alberta, British Columbia, Manitoba, and Saskatchewan, an adoption made according to the law of another jurisdiction is treated as if it had been made under the law of that province.

Requirements to become an adoptive parent include:

• being at least 18 years of age;
• demonstrating the ability to provide a stable and nurturing home environment;
• undergoing a thorough assessment process conducted by adoption agencies or authorities involving criminal record checks and medical examinations; and
• providing references to attest to one’s suitability as an adoptive parent.

Once a person becomes an adoptive parent, they automatically assume decision-making responsibility for the child.

In Canada, the federal Divorce Act governs child relocation for parents who were married and are divorcing. For non-married couples/parents, provincial legislation applies. The relocation provisions in provincial legislation closely correspond to the relocation provisions in the Divorce Act. Indeed, in Ontario’s Children’s Law Reform Act, the relocation provisions are identical.

In Canadian law, child relocation is defined as a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility – or who has a pending application for a parenting order – that is likely to have a significant impact on the child’s relationship with:

• a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
• a person who has contact with the child under a contact order.

Consent – Persons with Parenting Time and/or Decision-Making

Under Section 16.9 of the Divorce Act, a person who has parenting time or decision-making responsibility with respect to a child and who intends to relocate with the child must notify any other person who has parenting time, decision-making responsibility, or contact with the child of their intention to relocate in the form of a “Notice of Relocation”.

The Notice of Relocation must be provided at least 60 days prior to the expected date of the proposed relocation. It must set out the expected date of relocation, the address of the new place of residence, contact information for the moving parent/child, and a proposal as to how parenting time, decision-making responsibility, or contact will be exercised by the non-moving party if relocation is permitted.

A person with parenting time or decision-making responsibility with a child who receives a Notice of Relocation must object within 30 days if they oppose the relocation. If they do not object within this timeframe by filing an objection or by starting an application, and there is no order prohibiting the relocation, the parent who wishes to move is permitted to relocate with the child (see Section 16.91 of the Divorce Act).

If a person with parenting time or decision-making responsibility objects to the proposed relocation, the relocation cannot proceed immediately.

The parties may first attempt to resolve the issue through negotiation or mediation. This could occur privately or through counsel. However, if the parties are unable to reach an agreement, the matter may ultimately proceed to trial, where the court will decide whether the proposed relocation is in the child’s “best interests” and should be permitted.

In Canada, the Divorce Act distinguishes between a “relocation” and a “change of residence”. A relocation is a type of change in residence that would have a significant impact on the child’s relationship with another person who has parenting time, decision-making responsibility, or contact. Although “change in residence” is not defined in the Divorce Act, a move that does not significantly impair a child’s relationship with the other party will generally be considered a change in residence. While a change of residence still requires notice, the requirements are considerably less onerous (see Section 16.8 of the Divorce Act).

Whether a move is a relocation or change in residence is a threshold issue. If the parties disagree on the characterisation of the move, a judge will need to determine the issue at the outset of the case, as it will dictate the applicable legal framework and notice requirements.

The analysis is not limited to the distance of the move or the associated travel time. Rather, courts tend to focus on the effect of the move on the child’s relationship with the other party, the impact on the non-moving parent’s parenting time, and how the commute would affect the quality of the non-relocating parent’s relationship with the child.

If a parent who relocates with a child fails to obtain the relevant consent as outlined in 2.1 Whose Consent is Required for Relocation? and 2.2 Relocation Without Full Consent, the child will be found to have been “wrongfully removed”. A wrongful removal, also known as an “abduction”, is a serious matter that engages both domestic and international legal frameworks, and may result in court-ordered repatriation of the child.

Furthermore, under Sections 281 to 283 of the Canadian Criminal Code, it is a federal criminal offence to abduct a child under the age of 14 years. The offence is punishable by a fine or up to ten years in prison.

If a child is abducted or is suspected to have been abducted from Canada, the contacts below can help:

• Local Police: They can investigate and share information about your child’s abduction with other national and international organisations.
• The Passport Program: They can add the child’s name to the Passport Program System Lookout List or refuse to reissue a new passport.
• Consular Services at Global Affairs Canada: Consular case management officers, who are knowledgeable about international child abductions, can direct parents to organisations in Canada and abroad that help in situations of child abductions.

The process for having a child returned to Canada depends on whether the country to which the child was taken is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention).

Hague Convention Countries

Canada is a signatory to the Hague Convention. Therefore, where the child has been removed from Canada to another country that is a signatory without consent, the following procedure applies.

Each signatory country to the Hague Convention must have a Central Authority. The Central Authority for each province is as follows:

• Alberta – Alberta Justice;
• British Columbia – British Columbia Ministry of Justice;
• Manitoba – Manitoba Department of Justice;
• New Brunswick – Office of the Attorney General of New Brunswick;
• Newfoundland and Labrador – Attorney General of Newfoundland and Labrador;
• Nova Scotia – Nova Scotia Department of Justice;
• Ontario – Ontario Ministry of the Attorney General;
• Prince Edward Island – Prince Edward Island Department of Justice and Public Safety;
• Quebec - Ministère de la Justice du Québec; and
• Saskatchewan – Saskatchewan Ministry of Justice.

The contact information for the Central Authorities in Canada can be found on the Hague Conference on Private International Law’s website.

If the country to which the child is brought is a signatory to the Hague Convention, the left-behind parent may apply for the child’s return to Canada. The left-behind parent, or counsel acting on their behalf, should contact the relevant Central Authority (see above) to commence a Hague Application. The relevant Central Authority is the province in which the child was habitually resident before the removal. The Central Authority will assess whether the Hague Convention applies, and if so, forward the application for the child’s return to the Central Authority in the foreign jurisdiction where the child is being kept.

Once the foreign Central Authority receives the Hague application, they work with the local Central Authority to try and obtain legal counsel for the left-behind parent. Legal counsel in the foreign jurisdiction will commence a court proceeding in the foreign court for the return of the child. The foreign court will then consider the following elements to determine whether to order the return of the child:

• The child is under 16.
• The child was habitually resident in Canada immediately before removal or retention.
• The removal or retention breached custody rights.
• The applicant was exercising custody rights at the time.

If the above elements are established, the court must generally order the child’s return unless one of the following exceptions is met:

• Consent or Acquiescence: The left-behind parent agreed to the move, or accepted it after the fact (Article 13(a)).
• Grave Risk of Harm: Returning the child would expose them to physical or psychological harm or an otherwise intolerable situation (Article 13(b)). This is the most frequently raised defence, and courts scrutinise it closely.
• The Child Objects: The child of sufficient age and maturity objects to being returned (Article 13).
• The Child is Settled in the New Environment: More than a year has passed and the child is now settled in the foreign jurisdiction (Article 12).
• Fundamental Freedoms: Returning the child would violate the fundamental principles of the foreign country relating to human rights and fundamental freedoms (Article 20).

After commencing a Hague Application through the relevant Central Authority, the left-behind parent may also seek relief from the Canadian courts. The applicant parent may bring an urgent motion in the relevant provincial court to prevent further relocation of the child and support enforcement of any eventual return order when the child is back in Canada.

Non-Hague Convention Countries

Where the child is taken to a country that is not a party to the Hague Convention, the Hague Convention’s return mechanism is unavailable. Therefore, the left-behind parent will generally have to rely on the foreign country’s domestic family law and court system or diplomatic efforts. This will almost always involve retaining local counsel in the foreign country where the child is located. Because of this, outcomes in non-Hague Convention cases tend to be more variable and slower.

Canada is a signatory to the Hague Convention. Therefore, a Canadian court would follow the process outlined in 3.2 Steps Taken to Return Abducted Children in deciding whether to order the return of a child.

Canadian courts will use a “hybrid approach” to determine a child’s habitual residence (Office of the Children’s Lawyer v Balev, 2018 SCC 16). This approach requires considering all relevant factors, including the child’s links to both countries (school, friends, language, extended family, community involvement), the circumstances of the move (temporary v indefinite, reasons for relocation), and parental intentions, without any single factor dominating the analysis. The inquiry is fact-specific, and the list of potentially relevant factors is not closed. There are no rigid rules, formulas, or presumptions.

The Supreme Court of Canada has noted that a child’s habitual residence can change while they are staying with one parent under time-limited consent from the other, provided the overall circumstances show that the child has become integrated in a new environment (Office of the Children’s Lawyer v Balev, 2018 SCC 16).

Courts in Canada apply the principle that the Hague Convention’s default is immediate return and treat the exceptions listed in 3.2 Steps Taken to Return Abducted Children as narrow and exceptional.

Free and Subsidised Legal Advice

Articles 7(g) and 25 of the Hague Convention provide that contracting states should facilitate the provision of legal assistance and advice to left-behind parents.

The Central Authorities in Canada help left-behind parents by:

• providing information and procedural guidance;
• helping to prepare and transfer applications; and
• connecting parents with local lawyers or legal aid where possible.

Each province has its own legal aid scheme, which may provide free or subsidised counsel in Hague Convention-related matters. However, the financial eligibility criteria for legal aid tend to be very strict across provinces and applicants must usually be significantly low-income to qualify for services.

Average Costs and Timeline for Applications Under the Hague Convention

Although the Hague Convention calls for resolution within six weeks, Canadian Hague applications may take several months from commencement to final decision, with longer timelines in highly contested cases or where appeals are pursued. However, they are typically expedited and heard sooner than other family law matters.

Hague applications are resource-intensive and commonly cost tens of thousands of dollars in legal fees and related expenses, even in simple cases resolved without an appeal. Many provinces may require the losing party to pay costs. Additionally, courts have the discretionary authority to order the abducting parent to pay “necessary expenses” incurred by or on behalf of the applicant, including travel expenses, costs of locating the child, legal representation, and the costs of returning the child. However, applicants may need to fund these significant costs up front and should be advised that cost recovery is discretionary.

Procedure and Principles for Return to a Non-Hague Convention Country

Where a child has been taken from a country that is not a party to the Hague Convention, there is no Hague Convention-based return mechanism. In this case, the left-behind parent will need to file an application for the return of the child in the relevant provincial court. The matter will proceed under the relevant provincial legislation rather than under the Hague Convention.

In Ontario, for example, an urgent motion for the child’s immediate return would be brought under the Children’s Law Reform Act (CLRA). The court may grant remedies such as:

• declarations of wrongful removal or retention;
• orders for decision-making responsibility and parenting time; and
• non-removal and travel-restriction orders.

Provincial statutes generally echo the Hague Convention principle and favour returning disputes to the child’s place of habitual residence, but they operate purely as a matter of domestic law when the destination state is not a party to the Hague Convention. Canadian courts give significant weight to habitual residence in this context, but they are more cautious about ordering a child’s return to a non-Hague Convention country where they cannot assume that the foreign courts will decide the custody dispute according to familiar “best interests” standards or offer comparable protections.

A key distinction between a Hague application and an application under the CLRA (or analogous legislation) is the level of judicial discretion. Under the Hague Convention, courts start from a strong presumption of immediate return and treat exceptions as narrow. Under the CLRA, Ontario courts have greater discretion both in deciding whether to assume jurisdiction and in determining whether a return order is in the child’s best interests. They are not required to presume that non-signatory states provide adequate safeguards for returned children. In practical terms, the threshold for refusing to order a child’s return to a non-Hague Convention country is lower than the threshold for refusing return to another Hague Convention country.

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