Can I Move with My Child After Separation?

It’s one of the questions I hear most often from separated parents: “I want to move…. Can I take my child with me?”  

The honest answer is:  It depends.  And the rules are more nuanced than most people expect. 

In Ontario, the relocation of a child after the parents separate is governed primarily by the federal Divorce Act, which was significantly amended in 2021 to deal specifically with relocation.  (For unmarried parents, it is the provincial Children’s Law Reform Act that governs, with a nearly identical approach). 

In the face of a proposed move by a parent, this legislation sets up various legal obligations and presumptions.  Here’s what you need to know. 

Not Every Move Is a “Relocation”  

First of all, not every change of address with your child will trigger those obligations.   

In a recent case called Versteegh v. Kerr, 2026 ONSC 208, the court pointed out that a parent’s move only counts as a “relocation” if it is likely to have a “significant impact” on the child’s relationship with the other parent.  A move across Canada will naturally meet this threshold, but a shorter move can merely amount to a “change of residence” that does not.   

In the Versteegh case, the mother had made a unilateral decision to move with the children to a place that added only 26 minutes of driving time to the father’s regular visits. The court found this did not amount to a “relocation” for these purposes. (That said, the court still used its powers to order her to move back, because her stated reasons for doing it – namely a modest rent increase, and a desire to consolidate finances with her boyfriend — did not justify uprooting the children from the school and community where they’d been settled for a year and a half). 

Notice Is the First Step 

Next, it’s important to know that a proposed plan to relocate invokes a mandatory procedural step that trips up many parents:  Notice.  

Under section 16.9 of the Divorce Act, if you intend to relocate with your child, you must give your child’s other parent at least 60 days’ written notice, setting out: 

• The proposed moving date,  

• The new address, and  

• A proposal for updated parenting time.  

The other parent then has 30 days to formally object.  If they don’t, then you can generally proceed with the move, without having to go to court at all.  But if the other parent does object, then you must make a formal court application, asking for permission to relocate.   

By the way, the other parent’s failure to object on time will likely strengthen your own case. For example in Robidoux v. Amiti, 2025 ONSC 6819, the father – described by a court as “manipulative, malicious, cunning and destructive” – had launched a sustained campaign of litigation against the mother.  Despite the variety of persistent and strategic ways he tried to harass her, he never got around to filing his objection to the mother’s request to move to Croatia with their child.  It was one of the factors in the court’s decision to let her relocate.  

The “Best-Interests of the Child” Test 

The next aspect is the key one:   For the court to grant permission, it must be satisfied that the relocation will serve the “best interests of the child”.   

The relevant factors are listed in sections 16 and 16.92 of the Divorce Act; in addition to a general best-interests assessment, the court must also consider:  

• The reasons for the proposed relocation, 

• Its impact on your child, 

• How much time each of you as parents currently spends with the child, 

• Whether you, as the relocating parent, complied with the notice requirements, and 

• The reasonableness of any revised parenting proposal you are putting forward. 

Naturally the court’s evaluation will depend on the facts and circumstances of your situation, but it’s a good list to remember when thinking about the prospect of a move in the first place. 

The Presumption in Favour of the Parent Who Wants to Move  

One of the most important, and most misunderstood, features of the 2021 amendments is the burden of proof in connection with that best-interests test. 

Under section 16.93 of the Divorce Act, if your child spends the “vast majority” of their time with you, as the parent who wants to move, then two things happen: 

• There is a legal presumption in your favour, that the move you are proposing is indeed in your child’s best interests, and 

• Your child’s other parent bears the burden of proving the relocation would not be in your child’s best interests.  

(Where parenting time is closer to equal, neither you nor the other parent gets the benefit of that presumption, and both of you must try to satisfy the court that your position serves the child best). 

Getting the Onus Wrong 

It may seem unusual to put the burden on the objecting parent, but the Ontario courts are vigilant about keeping it that way.  

In Angelillo v. Mughal, 2025 ONCA 769, the parents had separated after a brief marriage, and the father ended up with primary care of their young child under a series of interim orders.  That being the case, he was entitled to benefit from the Divorce Act presumption in connection with his proposal to relocate the child to Montreal. However, it turned out that the judge who heard the application took the wrong approach; she simply looked looked at the child’s best interests in a straightforward manner, and then dismissed the father’s relocation request after critiquing his plans and identifying various concerns. The Court of Appeal later declared this an error in law;  it was the mother who had to disprove that the move was in the child’s best interests, not the other way around.  The Appeal Court set aside the initial dismissal, and sent the matter back for a new hearing. 

The Takeaway 

Any relocation with a child starts long before the court gets involved, and is more complex than it may seem.  It’s not just the notice requirement to consider; it’s also the honest assessment of whether a court will agree that the child’s best interests will be served.  

If you’re thinking about relocating with your child – or you’ve just received notice that your Ex intends to – give our offices a call.  We can help you understand where you stand, and what evidence you’ll need to protect your position.