Recently Divorced and Considering Relocating With Your Children? How Mobility Rights In Alberta Will Affect Your Plans

Recently Divorced and Considering Relocating With Your Children? How Mobility Rights In Alberta Will Affect Your Plans

Recently Divorced and Considering Relocating With Your Children? How Mobility Rights In Alberta Will Affect Your Plans

Divorce is a major life change and it can bring with it other major changes, including the need or desire to move to another town, province or country. Relocating with your children can have a big impact on the children’s relationships and their general well-being and you should consider your options carefully before planning a move.

Recent changes to Canada’s Divorce Act include a framework to deal with mobility applications in a way that aims to protect the relationships that children have with all of the important people in their lives.

If you are recently divorced and considering relocating with your children, contact our divorce lawyers to find out how mobility rights in Alberta will affect your plans.

What does it mean to relocate?

There is a difference between changing residence (moving to a different home) and relocating. Relocating is defined in the Divorce Act as a move that would be expected to have a significant impact on the child’s relationship with someone who has:

  • parenting time
  • decision-making responsibility, or
  • an order for contact with the child.

Do you have to give notice to the other parent before you move?

Before you move with your children, you will probably need to advise the other parent of your plans. In most cases, the other parent will have (at least) guardianship rights or decision-making responsibility with respect to the children. This means that you need to make major decisions affecting the children together. If they do not agree with your intended move, then you may need to get a court order.

If you have a written agreement that deals with parenting, or a court order under the Family Law Act (which would be the case if you were never legally married), then your agreement or court order should specify the notice that you are required to give the other parent before you relocate.

If you have an order under the Divorce Act, then there are formal notice and objection requirements that you must follow. Specifically, you must give 60 days’ notice of an intended relocation. If the other parent objects, they must provide formal notice of their objection to the move within 30 days, at which point a judge will make the decision about whether or not the relocation can proceed as planned.

If you move without notifying the other parent (even if you don’t have a parenting agreement or an order in place) you might be accused of abducting the children and a judge might decide that your actions were not in the best interests of the children, which might affect your parenting rights and responsibilities in the future.

How will the court decide if you can move with the children?

The court makes all decisions relating to relocating with children by determining whether the relocation is in the best interests of the children. To determine what is best for the children, the court will look at:

  • the reasons for the relocation
  • how the move will impact the child and the amount of time they spend with each parent and other important individuals, such as grandparents
  • how reasonable the proposed relocation is, taking into account factors such as the cost of travel
  • the wishes of the children (depending on their ages)
  • many other factors.

Pursuant to the new changes to the Divorce Act, a court hearing a mobility application under that Act is not allowed to consider whether you will still move if the court determines that the children are not allowed to go.

The laws in Alberta relating to mobility applications are complex and getting it wrong can have serious repercussions on your life. If you are recently divorced and considering relocating with your children, contact us to learn how mobility rights in Alberta will affect your plans.

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