How Do Alberta Courts View One Parent Unilaterally Relocating and Taking Their Children With Them?

It happens occasionally with separated couples; one parent decides to move away from the city they currently reside in and do not inform the other parent. There is no issue with the parent relocating but parenting may become an issue. If you share parenting responsibilities of children with that partner who moved, things can get very complicated.

Unilaterally relocating while still responsible for co-parenting children with a former spouse or partner has been termed “self-help” by the Courts in Alberta. As a basic tenant, “self-help in family law is not permitted, unless there is an immediate danger and no opportunity to apply to the court for a variation order” (Hoda v Hoda, 2021 ABCA 122).

However, as is the case with every decision involving children, the ultimate test is the best interests of the child. In a unanimous decision, Justices Crighton, Pentelechuk and Feehan stated that while “it is always preferable that a parent not relocate without first informing the other parent and bringing a mobility application, the fact that the mother did not follow this course is not the determining factor. The relevant inquiry is what arrangement is in the child’s best interests” (Werry v Kish, 2021 ABCA 121).

These two cases were heard respectively on April 1 and March 29 of 2021 and appear to provide different ideals of how courts are to approach dealing with self-help. On one hand, the courts inform that the only time that self-help is to be accepted is if there is imminent danger and no opportunity to apply for relocation. On the other hand, the courts tell us that self-help is acceptable if it is in the best interests of the child.

Justices Schutz, Hughes, and Ho of the Court of Appeal shed valuable light on this tension in their decision, YZVM v DTT, 2022 ABCA 87. They started by discussing amendments made to the Divorce Act which came into force on March 1, 2021. Section 19.9 of the Divorce Act specifies that a person intending to move must give notice to the other party and may only execute that relocation if they are given permission by the other party or if the court provides an order to do so. At paragraphs 20 and 21 they state:

The rationale for the amendments requiring notice of a relocation was to help protect children’s relationships with specified individuals. Notice allows the parties the opportunity to discuss the proposed relocation and attempt to resolve issues […]

The amendments also deter “self-help.”

Taken together as a whole it appears as though there is a presumption against self-help in family law that can be combatted by providing evidence that the relocation was in the best interest of the child. If there were other options available to that relocating parent, that will likely be considered against them.

A recent decision by Justice Slatter out of the Court of Appeal discussed self-help on an interim basis. This was a hearing to decide whether the child of the marriage should have been brought back to Edmonton before trial set for five months in the future. Justice Slatter considered the history of the relationship and the father’s history of abusive actions toward both the child and the mother and that an Emergency Protection Order was in place in that respect. Ultimately, Justice Slatter determined that the best interests of the child were served by staying in British Columbia until the resolution of the matter at trial because of the potential for harm in Edmonton and the stability and community the child enjoyed there.

The specific facts of each case are always the ultimate determiner of whether the courts will allow a former partner to relocate with the children of the relationship. The relocating party has the responsibility of proving that the move is justified on the basis of the best interests of the children sufficient to disrupt the status quo.