The law is a dynamic thing. Governments and courts update and change the law according to their jurisdiction. Changes to the rules with respect to moving children after divorce came into play.
This means that divorced people with children who want to relocated, need to follow these new rules. If you have questions or concerns, please feel free to reach out to us. Kahane Law Office has both Calgary and Edmonton law firms to help you and your family. Our family law lawyers assist clients through Alberta.
Changes To The Divorce Act With Respect To Moving Children After Divorce
If separated or divorced, and considering moving to a new city or province with your child(ren), you require consent from the other parent, or a court order. This makes sense as moving children after divorce often limits the parent who remains behind’s ability to see and spend time with their child(ren).
Recently the Divorce Act was amended to provide the courts with guidelines to consider when deciding if a move should be allowed. These changes, however, only apply to married couples. If you never married your ex-partner, Alberta courts have made it clear in the decision of AED v. SRP, 2021 ABQB 567 that the Federal law does not apply to your family. If you are considering a move and were not married, the current law that applies to you was set out by the Supreme Court in the case of Gordon v. Goertz and you can find more information her: https://kahanelaw.com/moving-with-children-separation/.
We refer to cases involving a move to a different jurisdiction as mobility or relocation applications. For couples who were married, and want to move, the courts consider if the proposed move is the child(dren)’s best interest. This has not changed, but the Divorce Act changes have now a process for parties attempting to move to follow and the courts have been given more directions on what to consider.
Required Notice To The Other Parent When Moving Children After Divorce
If you are proposing a relocation with your children, you are required under section 16,9 of the Divorce Act, to provide notice of your relocation to the other parent in writing. The notice for moving children after divorce includes several key factors. For example, this notice must include:
- The expected date of the relocation;
- A proposal as to how parenting time, decision-making responsibility or contact, works after the move; and
- The address of the new place of residence and contact information of the person or child.
In some cases, the courts may issue and order for the relocation notice requirement to be waived. For example, if there is a history of family violence, may not require that you provide notice of your move. However, you need a judge to waive the requirement to provide notice.
What To Do If You Receive A Notice To Relocate Your Child
If you receive a relocation notice, you must respond within 30 days. You may agree with the relocation or you may object to the relocation. If you do not reply, then the relocation can proceed without your consent. In the recent case of Keeping v. Keeping, 2021 ABQB 892, the court allowed a relocation to the Maritimes, because the father had failed to acknowledge/respond to the relocation notice. The courts made it clear that if you are opposing the move, you must engage in the process. A parent cannot “lay in the weeds” to object after the move occurred.
The objection notice must include the following information:
- The reasons for the objection;
- A statement that the person objects to the proposed relocation; and
- The person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact.
If there is no agreement, then the parties must proceed to a relocation hearing. The Divorce Act has brought the following changes to the court’s analysis in deciding if the move is in the best interest of the child(ren).
The Court Standard To Allow / Disallow Moving Children After Divorce
First, the courts set out rules for who has to prove that the move is in the child(ren)’s best interest. The legal term for this is the “burden of proof”. If the children live primarily with the party proposing the move, then the party opposing the move has to prove that the move is not in the child(ren)’s best interest. However, if the children spend equal time with both parents, the party proposing the move, has to prove that the move is in the child(ren)’s best interest. The Courts treat moving children after divorce very seriously. The change to the legislation has a profound impact on moves proposed by primary parents. This is because the access parent has to lead evidence to the court that the child(ren) should not move.
The Specific Factors The Courts Look At
The courts must then consider several factors with respect to moving children after divorce. For example, the courts in Alberta look at:
- The reasons for the relocation;
- The impact of the relocation on the child;
- The amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
- Whether the person who intends to relocate the child complied with any applicable notice requirement;
- The existence of an order, arbitral award, or agreement specifying the geographic area where the child is to reside;
- The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and lastly
- Whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
Factors The Courts Cannot Consider
The Divorce Act, has also made it clear that the courts cannot consider if the person who intends to relocate would relocate without the child(ren). In other words, the courts must decide if the child(ren) would be better off moving with the relocating parent. Alternatively, they decide if they are better off staying with the parent who is not relocating. The court cannot take into account that the parent relocating may stay if the child(ren) are not allowed to come with them.
Getting The Help You Need
Relocation cases involve complicated issues and legal arguments. They often turn (on the relationships that each parent has with the child(ren). Furhter, they courts also decide on the relationships that the child(ren) have with their local communities, schools, and relatives.
If you are planning a move, or have receive notice of a relocation, it is important that you speak to a lawyer to understand the process and what options are available to you. CONNECT NOW TO PROTECT YOUR RIGHTS AS A PARENT. Reach us in Calgary at 403-225-8810. Alternatively, connect with our Edmonton office directly at (780) 571-8463. Lastly, for the fastest response, email us with a brief description of your situation. Please email us here.