1. Overview of Relocation Law
Relocation cases are among the most challenging in family law because they force courts to balance a parent's right to move and pursue opportunities against the child's right to maintain meaningful relationships with both parents. The stakes are high on both sides.
In 2021, significant changes to the Divorce Act introduced a new framework for relocation cases that applies to divorced parents and some common-law situations. Alberta's Family Law Act contains similar provisions for cases not covered by the Divorce Act.
What Counts as Relocation?
Under the Divorce Act, relocation means a change in the place of residence of a child or parent that is likely to have a significant impact on the child's relationship with another parent, guardian, or other important person. This can include moves within the same city if they significantly affect parenting time.
The law distinguishes between the parent who has the majority of parenting time and parents who share parenting time substantially equally. Different rules and burdens of proof apply depending on your situation.
2. Notice Requirements
Before relocating with a child, the parent planning to move must provide written notice to everyone with parenting time, decision-making responsibility, or contact orders. This is a mandatory legal requirement, not optional.
What the Notice Must Include
- The expected date of the relocation
- The new address and contact information
- A proposal for how parenting time, decision-making, and contact would be exercised after the move
- Information about how to object to the proposed relocation
Timing Requirements
- Standard notice: At least 60 days before the planned relocation
- Exceptions: Notice can be given after the move only if there are safety concerns (family violence) or other circumstances that make pre-move notice impossible
- Form: Notice should be in writing using the prescribed form or containing equivalent information
Important Warning:
Failing to provide proper notice can seriously harm your case. Courts view failure to give notice as evidence of bad faith and may refuse to permit the relocation even if it would otherwise be allowed.
3. The Objection Process
When a parent receives relocation notice, they have the right to object. The objection process is time-sensitive and must be followed carefully.
How to Object
- File a written objection within 30 days of receiving notice
- Use the prescribed objection form
- State the reasons for your objection
- Serve the objection on the relocating parent
What Happens After an Objection
Once an objection is filed:
- The relocation cannot proceed until the matter is resolved
- Parents should attempt to resolve the dispute through negotiation or mediation
- If agreement cannot be reached, the relocating parent must apply to court for permission to move
- Courts may order interim arrangements while the case proceeds
If No Objection is Filed
If the other parent does not file an objection within 30 days, the relocating parent may proceed with the move. However, they should modify the parenting arrangements as proposed in the notice and keep documentation that proper notice was given.
4. Burden of Proof
The Divorce Act establishes different burdens of proof depending on the existing parenting arrangement. This is one of the most important aspects of relocation law.
Majority Parent Relocating
When the parent with the majority of parenting time wants to relocate, the objecting parent bears the burden of proving that the relocation is not in the child's best interests.
This creates a presumption in favor of the majority parent's ability to move.
Substantially Equal Parenting
When parents share parenting time substantially equally, the relocating parent bears the burden of proving that the relocation is in the child's best interests.
This makes relocation more difficult when custody is truly shared.
What is "Substantially Equal"?
Courts have not defined a precise threshold, but generally:
- 40/60 splits are typically considered substantially equal
- 35/65 splits may or may not qualify depending on circumstances
- Courts look at actual time spent, not just what orders say
- Quality and nature of time matters, not just quantity
5. Factors Courts Consider
When deciding relocation cases, courts must consider the best interests of the child. The Divorce Act specifies factors relevant to relocation decisions:
Reasons for the Relocation
Courts examine the legitimacy and strength of the parent's reasons for moving. Job opportunities, family support, new relationships, and educational opportunities are common reasons.
Impact on the Child
How will the move affect the child's physical, emotional, and psychological wellbeing? Consider school disruption, loss of friendships, and community connections.
Feasibility of Preserving Relationships
Can the child maintain a meaningful relationship with the non-relocating parent through video calls, extended visits during holidays, and other arrangements?
Compliance with Notice Requirements
Did the relocating parent follow proper procedures? Courts view circumvention of notice requirements very negatively.
History of Care
Who has been the primary caregiver? How involved has each parent been in the child's daily life?
6. Moves Within Alberta
Not all moves within Alberta require formal relocation notice. The key question is whether the move would significantly impact the child's relationship with the other parent.
When Notice is Likely Required
- Moving from Edmonton to Calgary (or vice versa)
- Moving from a city to a rural area that significantly increases travel time
- Any move that would make the current parenting schedule impractical
- Moves that would require school changes affecting the other parent's involvement
When Notice May Not Be Required
- Moving to a different neighborhood in the same city
- Moves that do not significantly affect travel time for exchanges
- Moves that do not require changing the child's school
When in Doubt:
If you are unsure whether your planned move requires notice, err on the side of providing notice. It is far better to give notice that was not strictly required than to fail to give notice that was required.
7. International Relocation
International moves raise additional concerns and are subject to greater scrutiny. Courts are particularly cautious because:
- Distance makes maintaining relationships more difficult
- Time zone differences can limit communication
- Travel costs for visitation are substantial
- Enforcement of Canadian orders may be difficult or impossible
- The child may be subject to different legal systems
Hague Convention Considerations
If you are relocating to or from a country that is a signatory to the Hague Convention on International Child Abduction, understand that:
- Unauthorized removal of a child is considered abduction
- The child may be ordered returned to Canada
- Criminal charges may apply
- Proper legal process must be followed