Relocation Disputes: Mobility Applications

What happens when one parent wants to move away with the children but the other parent does not agree?

Relocation disputes (sometimes referred to as mobility applications) arise when one parent wants to move with the children but the other parent refuses to let the children move without a fight. The disputing parent might instead demand that the other parent goes without the children, leaving the children in the disputing parent’s day-to-day care. In other circumstances, a moving parent might decide to abruptly move with the children without any prior notice whatsoever to the other parent, forcing the other parent to seek assistance from the courts for the immediate return of the children.

Relocation disputes or mobility applications are a pretty big deal. Recent changes to the Divorce Act acknowledge the importance of dealing with proposed moves appropriately, and the following two clauses are being included in parenting orders:

Any person who has parenting time or decision-making responsibility in respect of a child to whom this order applies, and who intends to change their place of residence or the residence of the child, shall notify every other person who has parenting time, decision-making responsibility or contact with the child under a court order. This notification must be given by (specify method of notification) and must include the date that the change of residence will occur, the address of the new residence and any change in contact information resulting from the change in residence.

Any person who has parenting time or decision-making responsibility in respect of a child to whom this order applies, and who intends to relocate, shall notify, at least 60 days before the relocation, every other person who has parenting time, decision-making responsibility or contact with the child under a court order.

If one parent wants to move and the other disputes it, court intervention might become necessary. It is important for parents in these situations to seek legal advice immediately.

The Honourable Justice R. A. Graesser of the Court of King’s Bench of Alberta provided commentary of the difficulty trial judges face in mobility applications in CR v PS, 2022 ABQB 410 (CanLII), where at paragraph 169 he states:

[169]      As I expressed during argument, mobility applications are among the most difficult matters we face as trial judges. We are expected to make decisions that will have life-changing effects on the parties and any children impacted by the decision. In most circumstances, if the mobility application is allowed, the child’s relationship with the remaining parent will be significantly altered, perhaps permanently. If the application is not allowed, the moving parent’s relationship with the child will be significantly altered. I recognize that I am not to consider the possibility of the Applicant remaining in […] should this application fail.

If a relocation dispute proceeds in court, there is no guarantee that the outcome will be a slam dunk win for either of the parents. The child does not win in mobility applications. As noted in the comments by Justice Graesser, the children are impacted regardless of the decision. The child’s relationship will be impacted with one parent or the other, and the child’s life is altered significantly one way or another. The Court will only grant an order for a child based on what is in the best interest of the child. As a few examples:

  • Justice R. J. Hall heard a contested application for a parent seeking to relocate with the children and the other parent seeking primary care instead in Rinetti v Kent, 2022 ABQB 1 (CanLII). Justice Hall found it was in the children’s best interest to move as proposed by the relocating parent.

  • In another case, Justice Loparco heard a contested application for a parent seeking to relocate and the other parent instead asking for primary care in AB v MM, 2023 ABKB 377 (CanLII). Justice Loparco found it was in the children’s best interest to move with the relocating parent.

  • In a less successful case, Justice C. L. Arcand-Kootenay heard a contested application for a parent seeking to relocate and the other parent asking for primary care in Tatarin v Tatarin, 2022 ABQB 306 (CanLII). Justice C. L. Arcand-Kootenay found that the parent asking to move did not have valid reasons to move and the harm to the child would be too great if the child was removed from the other parent and extended family as proposed by the relocating parent.

 Of course, those are just a few examples and each case is unique with its own strengths and weaknesses.

What should you take from this?

Relocation issues can be difficult to resolve. If you are contemplating a move or if you have been notified of your co-parent’s intentions to move, you should speak with a lawyer immediately. A lawyer can work with you and provide you with recommendations on the best way to approach your situation. The best solution in relocation disputes or mobility applications is usually for the parents to find a parenting plan that allows the children to maintain a relationship with each parent regardless of where they live. If you need experienced support to navigate your situation, contact the Edmonton Family Network.

The Edmonton Family Network was designed to be used as a resource to anyone dealing with a difficult family situation. The Edmonton Family Network is familiar with the current limitations of the legal system and the barriers many people face trying to access and afford legal services. The Edmonton Family Network aims to educate and connect people with affordable resources and service providers that can help.

Edmonton Family Network has connections to legal service providers and community support services.

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