Can a Parent Move With a Child to Another City or Province After Separation?
Whether a parent may move with a child after separation depends on which statute the matter is under, on what any existing order says, and — where the Divorce Act applies — on which kind of move it is.
Which Kind of Move Is It
The Divorce Act distinguishes relocation from other changes of residence and imposes different notice obligations for each.
A relocation is a change in the place of residence of the child, or of a person who has parenting time or decision-making responsibility, or who has a pending application for a parenting order — where that change is likely to have a significant impact on the child's relationship with a person who has parenting time, decision-making responsibility or a pending parenting-order application, or with a person who has contact with the child under a contact order.
What decides it is the likely significant impact on the child's relationship. The definition fixes no threshold for that: it names no distance, no provincial boundary and no length of absence. Whether a particular change is likely to have a significant impact is assessed on that family's own circumstances.
And the distinction does real work, because the change-of-residence section does not apply to a change of residence that is a relocation. The two are not alternatives a parent chooses between: which obligations apply follows from whether the move meets the definition.
The Two Obligations Under the Divorce Act
A change of residence
A person who has parenting time or decision-making responsibility and who intends to change their own or the child's place of residence must notify, in writing, any other person who has parenting time, decision-making responsibility or contact with the child under a contact order. The notice sets out the date the change is expected to occur and the address and contact information of the new place of residence.
No minimum period appears in that section.
A relocation
Notice must be given at least 60 days before the expected date of the relocation, in the form prescribed by the regulations, to the same people. It sets out the expected date, the new address and contact information, a proposal as to how parenting time, decision-making responsibility or contact could be exercised, and anything else the regulations prescribe.
Who owes which duty
The relocation notice is owed by a person who has parenting time or decision-making responsibility. A person who has contact with a child under a contact order is a recipient of notice under both sections. That person's own change of residence is dealt with by a separate provision.
The court's power over the requirements
Under both sections a court may, on application, provide that the notice requirements do not apply, or modify them — including where there is a risk of family violence — and that application may be made without notice to any other party. An order may also itself authorize or prohibit the relocation of the child.
If the Other Parent Objects
A person who has given relocation notice and intends to relocate a child may do so on the date set out in the notice if a court authorizes the relocation, or if both of two conditions are met: no objection is made within 30 days after the day the notice is received, and no order prohibits the relocation.
The person who may object is named in the provision. It is a person who has parenting time or decision-making responsibility in respect of the child and who received the notice. A person who has contact with the child under a contact order receives the notice but is not that person.
An objection is made in one of two ways: in a form prescribed by the regulations, or by an application for a parenting order or to vary one. The form states that the person objects, the reasons, the person's views on the proposal set out in the notice, and anything else prescribed. The 30 days runs from receipt of the notice.
What the court then considers is the factors that make up the best interests of the child, together with a further list specific to relocation:
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The reasons for the move.
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Its impact on the child.
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The amount of time each person spends with the child and their involvement in the child's life.
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Whether notice requirements were complied with.
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Whether an order or agreement specifies where the child is to live.
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The reasonableness of the proposal in the notice, including the new location and travel expenses.
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And each person's compliance with their obligations and the likelihood of future compliance.
The court is not to consider whether the person would move without the child if the relocation were prohibited.
Who has to show what depends on how the child's time is divided, and there are three rules. If the parties substantially comply with an order, arbitral award or agreement providing that the child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
If the parties substantially comply with an order, arbitral award or agreement providing that the child spends the vast majority of their time in the care of the party who intends to relocate, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
In any other case, the parties have the burden of proving whether the relocation is in the best interests of the child.
And where the order referred to in either of the first two rules is an interim order, the court may decide not to apply that rule.
On variation, a relocation of a child is deemed to be a change in the circumstances of the child, and a relocation that a court has prohibited is not, in itself, such a change. How an order is varied is set out in parenting time after separation.
Under Alberta's Family Law Act
Alberta's Act approaches the subject through guardianship, and two provisions bear on a move.
A guardian's powers include deciding the child's place of residence and changing it. Those powers are given subject to the provision's own opening words: except where otherwise limited by law, including a parenting order.
And a court may include a notice term in a parenting order. The term requires a guardian who intends to change their own or the child's place of residence to notify the other guardians at least 60 days before the change, or within another period the court specifies.
So under that Act a court may put a notice term into a parenting order, and where an order contains one, it governs. A guardian's power to change a child's residence is limited by law, of which a parenting order is one example the provision gives.
What applies to a particular family is a question for their lawyer.
How a Lawyer Helps
A family lawyer can work out which statute your matter is under, whether a proposed move meets the relocation definition on your facts, what notice is required and by when, and how to give or respond to it. A lawyer can also bring or respond to an objection or an application about the move.
What happens when an order about a child is not honoured is covered in when a family court order isn't followed.
How parenting time, decision-making responsibility and guardianship fit together across the two Acts is set out in parenting, decision-making and child custody.
Talk to THEBIL Law
Contact THEBIL Law to discuss the move you are planning or responding to and the questions you want to address. The consultation request form can be submitted at any time, and the office makes contact to arrange a meeting.
THEBIL Law is a family law firm in Calgary at 5920 Macleod Trl SW Ste 720, Calgary, AB T2H 0K1, Canada.
Call 403-457-3128.