Are you considering relocating with a child after a separation or divorce? If so, it’s important to understand the legal implications and requirements of doing so. In this post, we will provide key points from the prevailing legislation in Alberta regarding parents’ obligations and rights in ensuring their children's well-being.
What Constitutes a Relocation?
Under the Divorce Act, in Canada, relocation refers to a change in the place of residence of a child or a parent that is likely to have a significant impact on the child’s relationship with someone granted (or seeking) parenting time, decision-making authority, or contact with the child.
The Legal Distinction Between Moving and Relocating
While moving might imply a change in residence within the same community or nearby areas, relocating after a divorce or separation involves moving a distance (e.g. to a different city, province, country) that disrupts the child's regular routine and relationships. The distinction is crucial because changes in residence and relocations have different notice requirements.
Notification Requirements in Alberta
According to the Divorce Act, the relocating parent is required to provide formal notification to all other individuals with parenting rights at least 60 days before the expected date of the proposed move. This includes not just the other parent but anyone else who has been granted contact or decision-making authority by the court. This notice must be detailed, providing the relocation date, new address, and a proposed parenting plan that considers the new circumstances. The required notice period aims to allow sufficient time for these individuals to assess the impact of the move and to respond if they have concerns.
Objecting to a Relocation Notice
If a parent or other legal guardian objects to the proposed relocation, they can do so through the court or by using the Objection Relocation Form. This document should include the following information: a statement confirming they object to the relocation, the reasons for their opposition, and views on the proposed changes to the parenting arrangements.
Court Evaluation of Relocation Requests
When evaluating a relocation request, Alberta courts prioritize the child’s best interests above all else. Some of the factors considered include:
- The reasons for the relocation.
- The impact on the child's life.
- The feasibility of maintaining the child’s relationship with the non-relocating parent through alternative visitation arrangements.
- Whether the individual intending to relocate has complied with the notice regulations.
Understanding the Burden of Proof in Child Relocation Cases
When planning to relocate with a child after a divorce, it is essential to understand the legal responsibilities concerning the burden of proof, as outlined in the recent amendments to the Divorce Act. These amendments, specifically section 16.93, establish clear criteria regarding who must demonstrate that the relocation is in the best interests of the child.
- Equal Parenting Time: If parents share substantially equal time with the child, the parent who wishes to relocate must prove that the move benefits the child to such a degree that it is the preferable outcome for them.
- Primary Caregiver Relocation: Conversely, if the child primarily lives with one parent who seeks to relocate, the onus shifts to the non-moving parent to show that the relocation would not be in the child’s best interests.
- Other Circumstances: In cases where the above sections do not apply, each parent must present arguments to justify why the proposed relocation should or should not proceed, focusing on the child's welfare.
Relocating with a child after divorce or separation in Alberta is a process that requires careful legal consideration and thoughtful planning. It's important for relocating parents to adhere strictly to Alberta's legal requirements and to approach the court with a clear and detailed plan that aligns with the child's best interests. Consulting with a family law attorney familiar with relocation cases in Alberta is essential to navigate this complex legal landscape effectively. For tailored advice and expert legal assistance with your relocation case, do not hesitate to contact us.
