DIVORCE AND RELOCATION IN ALBERTA
After Divorce, shared parenting could be tough on you, then your ex-spouse being the primary parent, drops a heavy bomb on you about moving and relocating with the Child putting you in a cleft stick. Do you have a right to prevent such relocation. Typically, a Divorce Order comes with some form of parenting schedule. Every parent intending to relocate with the Child outside the country is required to obtain consent from the other parent. Relocation disrupts the very foundation of joint parenting. It is a sensitive issue, and the Court treats it as such.
In authorizing relocation, there is only one important party: The Child
The Court, in granting an order of relocation, will always consider the best interest of the Child.
Section 16.92 of the Divorce Act R.S.C., 1985, c. 3 (2nd Supp) sets out factors the court must take into consideration in authorizing a relocation plan, while also determining the best interest of the child under Section 16 of the Divorce Act. What the Divorce Act does not do, is analyze what constitutes the best interest of the child.
In Gordon v. Goertz, [1996] 2 S.C.R. 27, the Court held that in considering a mobility (another word for “relocation”) case, the parent applying for a change in parenting must meet a threshold of first establishing that there has been a material change in the circumstances affecting the Child since the last order was made, then determining the best interests of the Child. This change must include a change in the “condition, means, needs or other circumstances” of the Child.
If there is no Court Order at all, we still recommend that you seek out a lawyer before making any dramatic changes to a parenting plan.
The Court would then assess, in the given circumstances, the best interests of the Child, with particular focus on:
(a) the existing parenting arrangement and relationship between the Child and the primary parent;
(b) the existing access arrangement and the relationship between the Child and the access parent;
(c) the desirability of maximizing contact between the Child and both parents;
(d) the views of the Child (as far as they can be ascertained without bringing the Child into the middle of the grown-ups’ fight);
(e) the primary parent’s reason for moving; but only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the Child;
(f) disruption to the Child of a change in parenting; and
(g) disruption to the Child consequent on removal from family, schools, and the community he or she has come to know.
Each case turns on its own facts in the analysis of these factors. Between each family’s unique facts and the list of factors, it can be quite difficult to predict, especially without a lawyer, how a Court will may its decision.
To gain greater insight into how your unique facts and the law affect your ability to relocate – or resist relocation – please contact Osuji & Smith Calgary Family Lawyers, where one of our Calgary knowledgeable family law lawyers can assist.
Author: Oluchi Peters
