If a parent is considering relocating with children after separation in Alberta, it is essential to proceed carefully and only after seeking the appropriate legal guidance—especially because the legislation has been changed in recent years.
When a parent plans to move away from the other parent and takes the children with him/her, the matter can stir deep feelings. In these situations, parents sometimes act rashly or without consideration for the rights of the other parent or, most importantly, the best interests of the children.
If the other parent agrees with the relocation during separation, there is nothing to stop the move. However, disputes may arise, so it is essential to understand what your legal rights and responsibilities are during this time.
New burden of proof rules for relocation cases in Alberta
The federal law was modified in March 2021, previously following a principle known as the “Gordon framework”. Under those rules, if custody was awarded to one parent, there was no starting presumption in parenting disputes in favour of the custodial parent (though his/her views were usually granted “great respect”).
Also, no burden of proof was placed on either parent to establish the preferability of a particular parenting proposal—including if relocation was proposed.
Since 2021, the Divorce Act has recognized two situations where a burden of proof will rest on one parent, affecting the question of who needs to prove what when attempting to relocate with children:
- If the standard parenting arrangement provides for equal parenting time, the parent seeking to relocate has the burden of proving that relocation is in the child’s best interests.
- If the standard parenting arrangement provides for the children to spend the vast majority of their time in the care of the parent who seeks to relocate, the other parent must prove that relocation is not in the child’s best interests.
Ultimately, then, the custody arrangement and history of caregiving will be taken into account during cases involving relocation with children after separation in Alberta.
Is a parent’s reason for relocating with children important in Alberta?
Since the new rules came into being, a custodial parent’s reason to relocate is an important consideration for the Alberta courts. This is, however, secondary to the child’s best interests, which must always be the main driver for decisions on matters that affect children, such as relocation.
The law states the following:
“Ultimately, the moving parent’s reasons for relocating must not deflect from the focus of relocation applications — they must be considered only to the extent they are relevant to the best interests of the child.”
While some language and provisions of the law have changed when considering relocation cases, the child-centric nature of the law remains fully intact.
What is the “maximum contact” principle in Alberta?
The general principle used in family law in Alberta is that maximum contact with both parents is in the best interests of a child.
This was expressed in the Divorce Act as the “maximum contact” principle before the recent amendments. Since the modifications, the language of the Act changed to “parenting time factor” but the same principle continues to be a factor that courts are directed to consider in relocation cases.
Relocating to another province can seriously challenge this general principle, which is a mandatory but not absolute consideration in cases.
Ultimately, in disputes, if other factors demonstrate that the child’s best interests are not served by continued contact with both parents, then the relocation may be granted.
How does the new legislation prevent a “double bind” for parents relocating with children?
Before the Divorce Act was amended, if a parent presented evidence showing that he/she is or is not willing to forgo the relocation if permission to move with the children is or is not granted, there was no clear guidance in the legislation for how much importance a judge should place on it when deciding.
Generally, the factor was given little consideration because a parent could either appear to be putting their interests ahead of their child or risk undermining the strength of their relocation application by indicating that they would not move without the child: this is sometimes known as a “double bind.”
Since March 2021, however, with the modifications to the Divorce Act, this is addressed clearly in the legislation:
“In all cases, the court should not consider how the outcome of an application would affect the parties’ relocation plans.”
Family violence and the best interests of the child
Other new provisions in the legislation address family violence and the best interests of the child. These are some of the most important changes to the Divorce Act.
Before 2021, the Act had stated that the past conduct of a parent should be considered only where the conduct was relevant to the ability of that person to act as a parent of a child.
After the modification, however, the Act now provides a much broader definition of family violence and how it should be taken into consideration. Family violence now includes physical, sexual, psychological, and financial abuse, as well as threats and harassment.
The Act expressly includes family violence as a factor in the analysis of the best interests of the child. This means that in cases involving a parent relocating with children, the judge should consider any history of any type of family violence as covered in the new definition.
The following was stated in the verdict of a previous relocation case involving family violence in Alberta:
“Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases.”
It is worth noting that any history of family violence toward any family member may be considered—not only toward the children with whom the parent is relocating. If a judge is concerned about the possibility of future violent behavior, it can rule against that parent because doing so would be considered in the best interest of the children.
Judges must decide where the children are most likely to enjoy a healthy, supportive, and positive environment.
If you live in the Calgary area and need assistance with any matters concerning relocating with children after separation, the experienced lawyers at Jennings Family Law can help you. Call us directly at (403) 316-0138 or book a case evaluation to discuss your situation.
