Mobility: The Divorce Act v. The Family Law Act

Lawren Wowk | November 27, 2023


The notorious judgment of King Soloman had a pointed result that escapes many of us. If you recall this parable, two women professed that the baby was their own. They came before wise King Soloman each stating their position. King Soloman, unable to determine who was telling the truth, offered to cut the baby in half thereby each woman would get an equal share. Barbaric to consider, the logic of King Soloman should resonate. Only the child’s true mother would reject the proposal thereby exposing the fraudster. King Soloman would then award custody of the child to the true mother, the women who rejected his proposal.

The judges sitting in Alberta Courts are likely not as bold as King Solomon. The current lack of directness, even boldness, often causes more harm than not. There is much to be learned and applied from King Soloman, especially when parents each go their own way and a dispute arises over where and with whom the children will reside after separation.

Whenever parents separate, they should consult an experienced family lawyer. Even King Solomon might have agreed with that piece of wisdom. The devil, as always, is in the details.  Issues you never considered could cause protracted and expensive litigation when considered after-the-fact as opposed to forethought. When couples cohabitate, they make compromises to each other for that relationship. One example is where a person calls home. Many separations involve disputes concerning “mobility.” The question becomes:  Can I, or my estranged spouse, move and take the children?

Canadians have the Constitutional freedom to move about the country.  When a parent decides to move, the question then becomes whether they can relocate the children. The Courts are not the arbiters of every parental decision. The Alberta Court of Appeal held in MacPhail v. Karasek that parents cannot be held hostage to the place the access parent lives; the access parents are not. Canadians have the right to divorce or separate and to exercise their freedom of movement. It is not for the Court to determine if they agree with the reasons for relocating; much like it is not for the Court to agree with the reasons for separating.

The landmark case of Gordon v. Goertz is often cited in mobility cases.  The two-prong test is well known among the Family Bar. There is much to consider, but the Court must ultimately determine if relocation is in the best interests of the children. The application of this test can be complex and stressful for everyone involved, especially the children. Parents often fail to understand or agree upon the best interests of their children, especially when parenting issues are disputed. Since Goertz, the Courts have spent the last 26 years refining mobility common law.

Parents often disagree on the historical roles each parent took on over the course of their failed relationship. Most will be unable to realize that their level of commitment may not help their position in a contested mobility application. This can cause families to be drawn into the litigation cycle with each parent relying on legal advice. There are several issues that if recognized, could remove unnecessary litigation. Unlike other areas of family law, in mobility cases, one parent will lose. It is important to speak with an experienced, knowledgeable lawyer because this area of law has seen some remodeling, and is now found within the revised Divorce Act. We now have mandatory notice provisions albeit a well-informed individual would have always given notice of an intention to relocate. More alarming is the change to the legal presumption concerning the burden of proof in mobility applications. Failing to properly understand this change can undermine your position.

The burden of proof in family law is on a balance of probabilities. In other words, 51% can tip the scales of justice. Imagine that:  your child’s best interest coming down to a 1% margin. The burden of proof requires a parent to produce sufficient evidence to prove their position according to this level of probability. Otherwise, they may lose; but as with all rules, there is an exception.

The burden of proof may not rest on the Applicant in certain circumstances. Section 16.93 of the Divorce Act describes an exception. If a child spends equal time with each parent, then the party seeking to relocate must show that it is in the child’s best interests (s. 16.93(1)). The primary parent is the one who spends the most time with the children.  We will see the phrase, the vast majority of time, being used now more than ever. If the primary parent decides to relocate, the onus will shift to the other parent to show that relocation is not in the best interests of the child (s. 16.93(2)). In all other situations, the parties have the burden of proving that relocating the children is in their best interests (s. 16.93(3)). The reason for the exception is that a parent who cares for a child daily, vast majority of time, is best able to assess what is in the child’s best interests (Barendregt). This is to say that the primary parent has already considered the child’s best interests prior to deciding to relocate.

Many parents opposing relocation will challenge the Applicant’s reasons for moving. Despite the sensibility of this challenge, the Courts are clear on this issue. The reasons to relocate can be personal, work related, or for any other purpose (Barendregt). Ultimately, the Court must decide if the children should relocate with the primary parent or stay with the access parent. The Court looks at the situation through the eyes of the children. Is it more difficult for children to deal with a switch of who is their primary parent. In other words, are the children better off staying with the primary parent but in a different location or remain in their current location but turning their primary parent into an access parent. Generally, the results favour the primary parent maintaining primary care and relocating the children. This is an awful day for the access parent.

It is tempting to ask a relocating parent if they would still move if the Court refused to allow the children to go with them. This became known as the double-bind or double-edge question. In Spencer v. Spencer,  the Court prohibited this question, and this restriction is now specified in Section 16.92 of the Divorce Act.

Do these changes to the Divorce Act apply to unmarried parents governed by the Family Law Act? Only the Divorce Act has made revisions following 26 years of mobility cases. The Family Law Act has not yet approached similar revisions. It would appear natural to apply these revisions to mobility situations regardless of marital status. The courts have been wrestling with this dichotomy but as of the date of this article, these revisions do not appear to apply to non-married persons.

It is likely that a Court will treat non-married couples the same as married couples in these cases since mobility affects everyone the same. Even when it comes to the provisions of “notice.” Presently, there is no Alberta case stating that a Court must apply the revised sections of the Divorce Act to Family Law Act matters. Although “notice” is not a requirement under the Family Law Act, it appears that the Courts will consider notice appropriate. After all, providing notice of an intention to relocate should be common sense. Proper notice is the first step in avoiding litigation. However, non-married persons can expect that the legal presumption will remain at the feet of the Applicant regardless of their parenting time, vast majority or not. In my professional opinion, it is only a matter of time before this change in the law is made formal by the Alberta Courts or the Alberta legislature.

It is important to discuss these issues with an experienced family law lawyer. We, at Grey Wowk Spencer, specialize in mobility cases. Please contact our office for an initial consultation.