After separation, parties with children will need to make new arrangements for parenting time and parental responsibilities, including who will make decisions on behalf of the child if disputes arise. It can be especially challenging when a parent plans to move away, including situations where the primary parent seeks to move away with the child. This is called relocation, and certain legal requirements must be met for a parent to relocate with a child. The most important factor for a relocation is the child’s best interests, which are assessed on various factors. For a child with special needs, the court will also consider how the relocation could impact the child’s needs, including any support from the school or extracurricular programs that may exist in the current location compared to the proposed relocation destination.

In this post, we will provide an overview of the requirements for relocation and discuss the factors that a court will consider when determining the child’s best interests. We will highlight the most significant factors related to children with special needs. Finally, we will discuss a case example, J.L.W. v. C.H., 2023 ABCJ 280, in which the court denied the mother’s application for relocation, given that the child had many existing supports for their special needs at their school, and changing schools would be a significant disruption. This post will provide key takeaways for parties considering relocation when their child has special needs.

Overview of Relocation With A Child 

If a party intends to move with their child, they must notify the other parent under sections 16.8 and 16.9 of the Divorce Act. The notice requirements depend on how the move might impact the other parent or any other party with which the child has a significant relationship. 

Change of Residence

A move may be less significant, such as a change of residence governed by s. 16.8 of the Divorce Act. For instance, the moving party may be moving with the child to a different neighbourhood in the same city. In these situations, the moving parent must provide written notice to the other parent, including the date of the change of residence, the address of the new residence, and contact information for the moving party or the child. Depending on the circumstances, some of this information may not be required, such as if a court finds that there was family violence and the moving parent may not want to disclose information about the new residence.

Relocation Involving A Significant Change

The move may be more significant, which would be governed by s. 16.9 of the Divorce Act. A move is considered a relocation when it is likely to significantly impact the child’s relationship with a person who has parenting time, decision-making responsibility, a pending parenting order regarding the child, or contact with the child (i.e. the other parent). For example, this would usually involve moving to a different city or province, impacting the non-moving parent’s parenting time.

In situations involving a more drastic move, the relocating parent must provide notice of the move at least 60 days before the proposed relocation. In many cases, The relocating parent must provide notice to anyone with parenting time, decision-making responsibility, or contact with the child, such as the other parent.

The following information must be included in the notice:

  1. Expected date of relocation;
  2. Address of new residence;
  3. Contact information of the relocating parent or the child;
  4. A proposal for how the non-moving party can exercise parenting time, decision-making on behalf of the child, or contact with the child; and 
  5. Any other requirements set out in the regulations. 

If there is family violence in the case, the court can change the notice requirements so that the relocating party does not need to disclose certain information. 

The non-moving party can file an objection after receiving notice of the proposed relocation. 

Best Interests of the Child 

To approve a relocation, the court must consider the best interests of the child, including:

  1. The child’s needs, given their age and stage of development, including their need for stability;
  2. The nature and strength of the child’s relationship with each parent, the child’s siblings, grandparents, or other important members of the child’s life;
  3. The willingness of each parent to support the child’s relationship with the other parent; 
  4. The history of care of the child;
  5. The child’s views and preferences, given their age and maturity; 
  6. The child’s cultural, linguistic, religious, and spiritual upbringing, including Indigenous upbringing and heritage;
  7. Plans for the child’s care; 
  8. The ability and willingness of the relocating parent to care for and meet the needs of the child;
  9. The ability and willingness of the parents to communicate and cooperate on matters concerning the child;
  10. Any family violence and its impact on care and meeting the child’s needs;
  11. Any civil or criminal court proceedings, orders, etc. that may affect the safety, security, and well-being of the child.

In addition, the court can consider:

  1. Reasons for the relocation;
  2. How the relocation will impact the child;
  3. How much time each parent spends with the child; 
  4. The reasonableness of the proposed change in parenting time.

Court Denies Mother’s Relocation Request, Given Child’s Existing School Support for Special Needs 

In the case of J.L.W., the parents shared decision-making on behalf of the child since he was seven years old. The child was 13 at the time of this case. The mother sought to move with the child to live with her new partner outside of Calgary, where both parents and the child had been living.

While the mother claimed that she needed to move because she could not afford to continue paying rent without relocating, there was no evidence suggesting this was true. Also, the child had special needs, but there was no evidence to suggest that the new school district had support for children with special needs. In his current school, the parents made significant efforts to ensure that he succeeded, including obtaining a psycho-educational assessment and plan at the school and setting up the child with a counsellor to address his anxiety and grief. As a result, the court found that the relocation would negatively impact the child’s special educational needs. Furthermore, the court found that the father consistently worked with the child to complete homework and would drive him to school to make sure he was attending. This impacted the child’s success and grades, which would not be available due to the relocation. 

In this case, both parties were highly involved in the child’s life. The court found that the move would significantly impact the father’s parenting time with the child.

Ultimately, the court found that the relocation was not in the child’s best interests, given the issues with changing schools, and ordered that the child remain in Calgary to finish at his previous school.

Mincher Koeman Family Lawyers in Calgary and Canmore Can Assist with Relocation 

It is often a contentious matter if a parent is seeking to relocate with the children, as it can significantly impact the children’s relationship with the non-moving party. The court must also consider many factors that can complicate one’s divorce case. If you want to relocate with your children, you should speak with our family law lawyers at Mincher Koeman, who are experienced in assisting parties with relocation. Our Calgary family law lawyers are dedicated to finding the best resolution for your parenting issues after divorce. To book a consultation, please contact us online or by phone at 403-910-3000.

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