February 20, 2023

Adam Letourneau, K.C.

When parents divorce, one of the most challenging issues they can potentially face down the road is how to deal with the mobility of their children. Mobility refers to the ability of one parent to relocate with the children, either within Alberta or to another province or country. The Canadian law relating to mobility of children is set out in the Divorce Act, which is a federal law that applies to married couples who are seeking a divorce. 

It is very important to understand that under section 16.93 of the Divorce Act, the burden of proof in child mobility cases depends on the existing parenting arrangements post-separation. If the parties substantially comply with an existing order, arbitral award, or agreement that provides for substantially equal time with each party, the parent who intends to relocate with the child has the burden of proving to the Court that the relocation of the child would be in the best interests of the child. On the other hand, if the child spends the vast majority of their time in the care of the parent who intends to relocate, the burden of proof is on the parent opposing the relocation to prove that it would not be in the child's best interests. In any other case (other than the two examples listed above), both parties have the burden of proving whether the relocation is in the best interests of the child.

When a court is considering a mobility of a child case, it will look at a range of factors to determine whether the move is in the best interests of the children. Some of the key factors that the court will consider include:

• The reason for the proposed move - The court will want to understand the reasons behind the proposed move and whether it is for a valid and good-faith reason, such as a job offer, educational opportunity, or to be closer to family.
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• The impact of the move on the children - The court will consider how the move will affect the children, including their relationships with both parents, their extended family, and their community.
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• The ability of the parents to co-parent - The court will consider the ability of the parents to communicate and work together in the best interests of the children, both before and after the move.
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• The children's wishes and feelings - The court will take into account the views and preferences of the children, particularly as they get older and are able to express their opinions.
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• The existing parenting arrangements - The court will consider the existing parenting arrangements, including the division of parenting time and decision-making responsibilities, and how they will be affected by the proposed move.

After the burden of proof issue has been resolved, the court will ultimately base its decision in these types of situations on what is best for the children. This can necessitate striking a balance between many aspects and taking into account how the proposed transfer will affect the children's development, quality of life, and general well-being.

Mobility of children post-separation or divorce is one of the more complicated areas of family law.  If you are facing a mobility issue, it is important to seek legal advice and guidance to help you navigate this complex process. A lawyer can help you understand your legal rights and obligations, and can provide guidance on how to present your case in the best possible way. It is important to remember that mobility cases can be challenging and emotional, and having the right legal support can make all the difference.

Learn more about our Lethbridge divorce and family law lawyers, Adam Letourneau, K.C., Spencer McMullin, Emily Tilleman, Austyn Anderson or Tamera Tupou.

Learn more about Divorce and Family Law Frequently Asked Questions from our website.

Call 403-329-4311 to set a free Divorce or Family Law consultation today with one of our Lethbridge Divorce or Family Law lawyers.

This article is for information purposes only and does not constitute legal advice.