Relocation and Mobility of Children

In Alberta, when a couple decides to separate, one party may want to move with their child, which may include relocating to another city in Alberta, another province within Canada or outside of Canada. In these situations, mobility becomes a complex legal issue involving the rights of the child, both parents and family law. The parent wanting to relocate can only do so if the other parent agrees or by Court order, as relocation typically hinders the other parent's access to the child. 

Legal Framework 

There are two main legislative frameworks that govern relocation and mobility in family law matters. : The Divorce Act which is Federal legislation which governs couples that are married and who are separated or divorced and the Family Law Act which is Provincial legislation that governs unmarried couples such as Adult Interdependent Partners. Both Acts include provisions that regulate the relocation of children with the most important principle being the “best interests of the child”. The courts use this principle to determine cases involving mobility and relocation of children, ensuring that any mobility or relocation decisions that are made that may affect the child's life are in the child’s best interest. 

Alberta’s New Laws on Relocating with Children after Divorce 

The Divorce Act was recently amended on March 1, 2021 to offer the court a set of guidelines for consideration when determining whether relocation should be allowed. The most recent amendments introduced provisions regarding relocation and mobility, heavily emphasizing that a parent must provide notice and a detailed proposal if they intend to relocate with a child. These guidelines however only apply to couples who are married which is why this falls under the Divorce Act. If a couple has never never been married the Alberta courts have made it clear that the Federal law will not apply in these cases but rather the Provincial legislation the Family Law Act will prevail. 

Defining “Relocation” of Children

Under the new amendments to the Divorce Act, section 2(1) defines “relocation” as a move that is likely to impact the child’s relationship with their parent or person who has parenting time, decision - making responsibilities or contact with the child.

Requirements of Moving Parent 

The new amendments to the Divorce Act, outline that the parent intending to relocate with the child must provide a “notice of relocation”. This notice is served to the other parent 60 days in advance of the proposed relocation as per section 16.9 Divorce Act before they can consider relocating with the child. This notice must be in writing and include the following 3 key factors: 

1. The expected date of the relocation; 

2. The address of the new place of residence and contact information of the person or child; and

3. A proposal as to how parenting time, decision - making responsibilities or contact will be exercised after the move. 

If both parties agree, the relocation can be formalized in writing and if necessary, submitted to the court for approval.  However, if the non - moving parent objects to the relocation of the child, they may do so within 30 days of receiving the notice by submitting an “objection to relocation” form. This form must include the following information: 

1. Statement declaring they object to the relocation; 

2. Reasons they object to the relocation; and 

3. Their views on the proposed parenting and contact arrangements outlined by the moving party. 

Once the moving party receives the “objection to relocation”, the moving parent may then apply to the court for permission to move. The court will evaluate whether moving is in the best interest of the child based on various factors outlined in the legislation. 

The Best Interest of the Child 

The primary consideration for the court in any case involving relocation or mobility is always the best interest of the child.The primary consideration in any case involving relocation or mobility of a child is to have the best interest of the child in the forefront. At the core of this legal framework lies the principle of prioritizing what is in the child’s best interest. There are various factors that encompass the best interest of the child, including the child’s physical, mental, emotional and psychological safety, security and well being, as well as the child’s relationship with each parent, the child’s schooling, and community ties.

In the Supreme Court of Canada’s decision in the case Gordon v. Goertz, the Court outlines the “Gordon Factors” which should also be taken into consideration when evaluating the best interest of the child. These factors are:

1. Existing custody arrangements and relationship between the child and custodial parent; 

2. Existing access arrangement and relationship between the child and the access parent; 

3. Desirability of maximizing contact between the child and both parents; 

4. The views of the child;

5. Custodial parent’s reason for moving and the relevance; 

6. Disruption to the child of a change in custody; and 

7. Disruption to the child’s family, school and community caused by the relocation.

The primary consideration for the court in any case involving relocation or parenting decision is always the best interest of the child. There is no presumption that relocating the child with one parent to a new location is always going to be in their best interest. Instead, the court carefully considers how the relocation and move will affect the life of the child which includes their relationship with both parents, siblings, other family members and their wider social network and community members. 

If you are facing a similar situation, contact Stokes Law for a consultation. Our team of family lawyers can guide you through understanding your legal rights and the potential implications, while prioritizing the rights of everyone involved, particularly the rights of the child.

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