If you are a joint guardian of your child with someone else you each have equal rights to make decisions for your child (unless their rights and responsibilities were limited in a divorce or parenting order). You should talk to the other parent about your plan to move and if they agree, you can arrange for how contact will continue between them and your child. The plan should address things like when and where access will happen and who will pay for the travel. If there is a court order regarding parenting you should have the order changed by agreement (this is called a consent variation order).

If you and the other guardian cannot agree about whether your child should move with you, you should apply for a court order allowing you to move with your child. Each situation is different and its best to talk to a lawyer about your situation before you take any action. Generally, if you want to move with the child, it is best to get the court’s permission to do so.  If you have care of your child most of the time (in other words, if you have “residential custody”, “primary care”, or “day to day care”), you and the other guardian, or a court, have decided that it is best that your child lives with you. Courts have said that the decisions of the primary caregiver are to be respected so long as decision is in the child’s best interests. However, this does not guarantee that you will be allowed to move with the child.

If you share the care of your child with the other guardian (in other words, if you have “shared custody”, “shared parenting time,” or “equal parenting time”), moving away with the child would change that arrangement. A court would have to decide with whom the child should live based on what is in the child’s best interests.

If you move without the permission of the court, the other guardian can apply to the court to have a judge decide if the move is in your child’s best interest. A judge will generally not make a final decision about what is best for your child until after a trial.  Until you have that trial, a court can make an “interim order” (which is a temporary order). Often, courts order that no big changes happen in the child’s life before a final order is made (this is called keeping the status quo), so you may be ordered to move back until there is a trial. If you moved without the permission of the other guardian or the court, this can be held against you when the court considers what is best for your child. If the court order includes a police enforcement clause, the police will facilitate moving the child back if you don’t cooperate. The police in other Canadian provinces and in many other countries will enforce these orders. It’s also possible that you will be charged with a crime if the other parent and the police believe you have abducted the child (see below). 

It is important to know what a court can and cannot consider in these types of cases. A court cannot order you to not move away, as you are an adult and are therefore free to choose where you live in Canada, but it can order that your child not be moved away. Also, a court should generally not consider if you would be willing to move back if the child was prevented from moving. This is because asking you this puts you in an impossible situation: if you say yes, you would move back, that undermines your request to move away, and if you say no, you would not move back, you look like a parent who does not care about your child.  

If the other guardian moves with your child to another province they may apply for an order from the court in that province while you apply for an order from a court in Alberta. In these cases the courts will have to decide which province should have jurisdiction to decide the case. Usually, this is based on which province the child is most closely connected.

It is often very difficult to determine what is in a child’s best interests, especially where both guardians have a strong, healthy relationship with the child. Each case is different and therefore the outcome can be hard to predict. It is always best to try to reach an agreement with the other guardian if possible.

 

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