Can I take my child out of the province or out of the country?

Elisha Hale, LL.B (Hons) Dip.Custody and Access, Divorce, Family Law, Separation0 Comments

Relocating or travelling with a child following the breakdown of a relationship is a commonly contested issue as any relocation by one party may make access or visitation with the child difficult. The relocation may be due to a new job, moving closer to family following the separation, moving to a new school or simply for a change of scenery; regardless of the reason, parties should be aware of their rights, and the other parents rights, to move their child or children out of the province or to another country.

The leading Supreme Court of Canada case on this issue is Gordon v. Goertz,  which developed a two-fold test to determine whether the move should be permitted:

  • Has there been a material change in circumstances; and
  • Would the move be in the child or children’s best interests?

If the threshold is met, the judge on the application must embark on a fresh inquiry into the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.  The focus of the inquiry is not the interests and rights of the parents.  Each case turns on its own unique circumstances and the only issue is the best interests of the child in the particular circumstances of the case. The Courts consider a variety of factors and will consider the current custody and access arrangements i.e. the frequency, location and the length of time the arrangement has been in place, as well as the impact that any proposed move would have on the child, i.e. a new school, the impact on extended family ties, friendships, education and extra-curricular activities.

If the Courts permit a parent to move, this may be expensive for the other parent or guardian to facilitate access to a child or to host the child for access. In cases like these, the Court may order that the relocating parent share or assume the cost of travel to facilitate access to the other parent or guardian.

In Gordon v Goertz, the parties resided in Saskatoon until their separation.  The mother petitioned for divorce and at trial was granted permanent custody of the young child while the father received generous access.  When the father learned that the mother intended to move to Australia to study orthodontics, he applied for custody of the child, or alternatively, an order restraining the mother from moving the child from Saskatoon.  The mother cross‑applied to vary the access provisions of the custody order to permit her to move the child’s residence to Australia.  Relying heavily on the divorce judgment and the first judge’s finding of fact that the mother was the proper person to have custody of this child, the judge dismissed the father’s application and varied the access provisions in the custody order to allow the mother to move to Australia with the child while granting the father liberal and generous access on one month’s notice to be exercised in Australia only.  On appeal, this judgment was upheld, however the father was permitted to exercise his access in Canada, as the appeal court held that access only in Australia was too limited.

Can I take my child on vacation?

If you wish to take your child on vacation, you should consider whether the custody agreement permits travel either domestically or internationally.  In addition, you  may need permission from the other child’s parent and a signed consent letter to provide to immigration authorities.  Should you fail to obtain permission and a signed consent letter, you run the risk triggering the Hague Convention which Canada is a member country to.  This Convention is a treaty designed to assist authorities in returning children where one parent has taken them to another country without permission.

Powers of the Courts

In Ontario, the Ontario Children’s Law Reform Act, provides some measures which assist in the prevention of child abduction. Courts may restrict issuing a child’s passport, for example, or set restrictions on a party’s access to the children. Courts and the authorities take child abduction incredibly seriously, for good reason. The Courts may order that your address be disclosed to the other parent or guardian from your health care provider, the department of motor vehicles or any other local departments.  A Court can also order law enforcement authorities to find, apprehend and return a child to their habitual residence.

If you have any questions regarding the above or require legal representation in respect to family law, custody and access, or separation and divorce, please contact us for an initial consultation.


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About the Author
Elisha Hale, LL.B (Hons) Dip.

Elisha Hale, LL.B (Hons) Dip.

Articling Student since September 2019, with a particular interest in business disputes, family law and mediation. Bio | Contact

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