The question usually arrives in one of two forms. Either a letter or a text has announced that the other parent is moving with the children to another city, another province or another country, on a date already chosen; or there is no announcement at all, only a well-founded fear that a trip will not end with the children coming back. The law treats the two situations differently, and the difference matters for what you can do and how fast.
Married parents: the Divorce Act notice
For married or divorcing parents, the Divorce Act sets out a notice scheme. A parent with parenting time or decision-making responsibility who intends to relocate a child must give at least 60 days’ written notice, in the prescribed form, to everyone else who has parenting time, decision-making responsibility or contact. A parent with parenting time or decision-making responsibility then has 30 days to object, either in the prescribed form or by applying to court. If there is an objection, the relocation cannot go ahead without a court order authorizing it. The Court decides on the child’s best interests, considering factors specific to relocation in addition to the usual ones, and the burden of proof turns on the existing arrangement. Where the child spends substantially equal time with each parent, the parent who wants to move must prove the move is in the child’s best interests. Where the child spends the vast majority of their time with the parent who wants to move, the objecting parent must prove that it is not. The Court can make interim orders while the question is decided.
Unmarried parents: the Family Law Act
For parents who were never married, and for married parents who have not started a divorce, Alberta’s Family Law Act governs. It does not contain a 60-day notice scheme. Deciding and changing a child’s place of residence is one of the powers of guardianship, and each guardian is entitled to be informed of, consulted about and to make all significant decisions affecting the child. When guardians disagree about where a child will live, either may apply for a parenting order, and the Court decides on the child’s best interests. Many existing parenting orders contain their own notice terms for a move, and where such a term exists it governs.
When the move is imminent: non-removal orders
Neither statute helps a parent whose child is being driven to the airport this weekend unless the Court can be reached in time. The Court of King’s Bench treats a risk that a child will be removed from the jurisdiction as an urgent matter under its Urgent Application Process, which means the request can go to a duty justice with the Court’s published processing time of 24 to 48 business hours, and where the risk justifies it, the application can proceed without notice to the other parent, with a return date on which both sides are heard. The Court can order that a child not be removed from Alberta and can make orders about the child’s passports and travel documents. Where a child has already been taken to another country that is a party to the Hague Convention on the Civil Aspects of International Child Abduction, the Court has a dedicated process under its Family Practice Note 6.
Practical first steps
Keep the announcement, the messages and any travel details; write down dates and what was said; and do not agree to anything in writing until you have advice, because a text that reads as consent to a trip can be used as consent to a move. Then decide quickly. A parent with 60 days’ notice has time to respond properly under the Divorce Act; a parent facing a departure within days does not, and the urgent route exists for exactly that situation. Keystone Legal brings and responds to relocation and non-removal applications for matters proceeding through the Calgary Courts Centre. If a move is imminent, call (587) 328-3328 today.
This article is general information about Alberta law and is not legal advice. Every situation is different, and you should speak with a lawyer about yours.
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