Relocating With a Child After Separation Or Divorce: Calgary and Edmonton

Relocating With a Child After Separation Or Divorce

Divorce is a challenging experience for families, particularly when children are involved. In some cases, divorced parents may face the prospect of one parent wanting to relocate with their child. This article aims to demystify the legal aspects of child relocation after divorce. Specifically, we are focusing on Alberta’s Family Law Act and the Divorce Act. Before making changes, book a consultation with one of the Kahane Law Office family law lawyers who deal with child mobility issues. They will explain your options and recommend steps to protect yourself and your family. With offices in both Calgary and Edmonton, Alberta, we can help you no matter where you live in the province.

Relocating With the Children Where the Parents Are Not Married:

Alberta’s Family Law Act provides a legal framework for handling child relocation cases where the parents are either not married, or have not started an action under the Divorce Act. These are main issues you might face or need to evaluate:

Best Interests of the Child:

The guiding principle in these cases is the best interests of the child. The court takes into account various factors, including the reason for the move and the potential impact on the child’s overall well-being (more below).

Parenting Plan Modification:

If the court approves the relocation, you may have to adjust the parenting plan to accommodate the new living arrangements. The court aims to ensure that the child maintains a meaningful relationship with both parents.

Mediation and Alternative Dispute Resolution:

Before heading to court, parents are encouraged to explore mediation and alternative dispute resolution methods. These processes facilitate constructive conversations, helping parents reach agreements that prioritize the child’s best interests.

Understanding the Divorce Act:

In addition to provincial legislation, the Divorce Act, a federal law in Canada, also plays a role in addressing relocation issues in the context of divorce. While the courts will analyze relocation in a similar way whether or not the action is going forward under the Family Law Act or the Divorce Act, the Divorce Act does have some specific requirements.

Mobility Provision (Section 16.5):

The Divorce Act includes a specific provision known as the “mobility provision” (Section 16.5) to address relocation cases. It recognizes that a custodial parent may need to move and establishes a framework for assessing such situations.

Notice Requirement:

When a parent plans to move with their child, they must inform the other parent by providing written notice. This notice should include specific details about the proposed move, such as the new location and the intended date of relocation.

Objection by the Other Parent:

If the non-relocating parent disagrees with the move, they have the right to file an objection with the court within a specified period. This objection triggers a legal evaluation of the situation.

Analysis of Best Interests:

Similar to the provincial law, the Divorce Act emphasizes the importance of the best interests of the child as the primary consideration in relocation cases.

Maximizing Contact with Both Parents:

The Divorce Act emphasizes the need to maximize contact between the child and each parent, considering the willingness of each parent to support the child’s relationship with the other parent.

Effect on Relationships and Activities:

The court assesses how the proposed relocation may affect the child’s relationships and participation in activities and programs.

Child’s Views and Preferences:

Depending on the child’s age and maturity, the judge might also ask the child what they think. This depends on how old the child is and if they can say what they want.

Factors Considered by the Court:

When deciding whether a parent can relocate with a child, the court considers various factors to determine the best course of action. In Alberta, these factors include:

1. Reasons for the Move:

• • The court examines the reasons behind the proposed relocation. If it’s for valid reasons such as better job prospects or proximity to family, the court may view it more favorably.

2. Relationship with Both Parents:

• • The strength and nature of the child’s relationship with each parent are crucial considerations. The court aims to ensure that the child maintains meaningful contact with both parents, even after the proposed move.

3. Impact on the Child’s Well-Being:

• • The potential impact of the move on the child’s physical, emotional, and psychological well-being is carefully assessed. This includes considering disruptions to the child’s routine, stability, and social connections.

4. Parenting Plan and Proposed Arrangements:

• • The court evaluates the proposed parenting plan, examining how the non-relocating parent’s time with the child will be maintained or adjusted. A well-thought-out plan that prioritizes the child’s continued relationship with both parents may influence the court’s decision.

5. Child’s Views and Preferences:

• • Depending on the child’s age and maturity, the court may take into account their preferences regarding the relocation. The weight given to the child’s views depends on their ability to express reasoned opinions.

6. History of Parental Cooperation:

• • The court considers the history of cooperation or conflict between the parents. A parent who has shown a willingness to facilitate the child’s relationship with the other parent may be viewed more favorably.

7. Educational Opportunities:

• • If the relocation involves educational benefits for the child, such as access to a better school, the court may consider this factor in the decision-making process.

8. Access to Extended Family and Support Systems:

• • The availability of extended family and support systems in the current and proposed locations is evaluated. These factors contribute to the child’s overall well-being.

9. Any History of Family Violence or Abuse:

• • If there is a history of family violence or abuse, the court considers the impact of the relocation on the safety and well-being of the child.

10. Overall Best Interests of the Child:

• • The court’s primary consideration is the best interests of the child. The courts will weigh all factors collectively to determine the most suitable arrangement for the child’s welfare.

Burden Of Proving Factors For Relocating Children After Divorce

Another important change regarding relocation are the new provisions dealing with the Burden of Proof i.e. section 16.93 (1)(2)(3) and section 16.94 of the new Divorce Act. For example, it specifies when:

• parents spend substantially equal time with a child. It is up to the moving-parent to prove that the relocation is in the best interests of the child;
• the child spends the vast majority of the time with one parent and that parent seeks to relocate with the child. In that case, the non-moving parent objecting to the relocation must demonstrate that it is not in the best interests of the child;
• Sections 16.93(1) and 16.93(2) do not apply. Then each parent must demonstrate why the proposed relocation is or is not in the best interests of the child; and lastly
• For interim orders, the court can disregard the burden of proof requirements included in s 16.93.

It is important to note that the change in law treats a “change of residence” and a “relocation” differently. In particular, the notice requirements are different. Section 16.8 addresses notice of a change of residence of the child. Section 16.9 addresses notice of a proposed relocation. The Bill C-78 that amends the Divorce Act, among other things, and contains the new provisions on Relocation can be viewed here.

What Parents Can Do:

If parents are dealing with the prospect of moving after a divorce, there are several things they can do:

Open Communication:

It’s essential for parents to communicate openly with each other about the proposed relocation. Understanding each other’s perspectives and concerns can lay the foundation for a smoother process.

Mediation and Alternative Dispute Resolution:

Before resorting to court, consider mediation or alternative dispute resolution methods. These approaches facilitate constructive conversations and help parents reach agreements that prioritize the child’s best interests.

Seek Legal Advice:

Parents should seek legal advice early in the process. A family law lawyer at Kahane Law Office in Calgary or Edmonton can provide guidance on the specific laws applicable to their case and help them understand their rights and responsibilities.

Develop a Comprehensive Plan:

For the parent proposing the relocation, having a well-thought-out parenting plan is crucial. This plan should address how the child’s relationship with the non-relocating parent will be maintained and how the child’s overall well-being will be supported.

Conclusion

Moving with a child after a divorce is a complex and emotionally charged matter. Both Alberta’s Family Law Act and the Divorce Act aim to prioritize the best interests of the child in such situations. Parents navigating these challenges should communicate openly, seek legal advice, and strive to create a plan that ensures the child’s well-being and continued positive relationships with both parents. By taking a thoughtful and child-centric approach, families can navigate the complexities of relocation after divorce and lay the groundwork for a positive and stable future.

The lawyers at Kahane Law Office in Calgary and Edmonton can help! Whether you are looking to relocate with your child, or you want to oppose the other parent’s plan to relocate with the child. If you need any help with this issue, email us at [email protected] (Edmonton), or [email protected] (Calgary), or call us at 780-571-8463 (Edmonton) or 403-225-8810 (Calgary). Our staff will help you start right away.