Moving With or Without Children

Mobility rights are the rights of individuals to move from place to place without government intervention. In Canada, section 6 of our Charter of Rights and Freedoms says every citizen of Canada has the right to enter, stay in and leave Canada. Canadian citizens and permanent residents can also move and work freely between provinces.

When it comes to children, parents make the decision about where their children will live. If the parents are separated, parents must work together unless the court says one parent alone can make that decision. Courts cannot order a parent not to move. But the court can order that a child not move with that parent.

Last Reviewed: March 2021

A mobility application is a court hearing about whether a child can or cannot move with a parent.

Last Reviewed: March 2021

There are two laws in Alberta that deal with parenting: the Divorce Act and the Family Law Act.

The Divorce Act is a federal law that applies across Canada. As of March 1, 2021, the Divorce Act includes rules for parents and people who have contact with a child to give notice of their move. If you have a court order under the Divorce Act, these rules apply to you, even if your court order is from before March 1, 2021. See our Moving and the Divorce Act FAQs for more information.

Alberta’s Family Law Act applies only in Alberta. It does not say anything specifically about moving. But, it does say that decisions about parenting (including where a child lives) must be in the best interests of the child. Judges also use caselaw (judge-made law) to make decisions. Previous court cases have set out things a court should look at when deciding whether a move is in the child’s best interests.

Last Reviewed: March 2021

There are a few steps you should take if you have parenting time with a child and you want to move.

1. Review your parenting agreement or court orders. Usually, these documents say you must give notice to other parents, guardians or persons with contact if you want to move. You might be abducting the children if you move them without providing these other people with notice. The other parent or guardian could apply for an order for the return of the children. There could be long-term consequences on the parenting arrangements.
2. Review your legal obligations to notify others of the move. The Divorce Act sets out notice requirements for everyone involved. The Divorce Act also sets out an objection process. If your order is made under the Divorce Act, you must obey these notice requirements, unless your order says otherwise. For more information, see our FAQs on Moving and the Divorce Act.
3. Talk with the other parent(s) or guardian(s) and anyone who has contact with the children. You might be able to work out a new parenting schedule with the other parent or guardian and avoid going to court. You could also use a mediator or collaborative process to come to a new agreement. For example, you might agree that the children will be with the other parent or guardian on all school holidays. You could also suggest ways to ensure the parent or guardian stays in contact with the children using technology. For example, you could buy a cell phone for the child so that the other parent or guardian can send text messages and call the child at any time.
4. Talk to a lawyer for advice on whether you can move with the child.

Last Reviewed: March 2021

No. Most parents are joint guardians of their children. This means that unless a court has ordered otherwise, you must make major decisions about your children together.

If you have a parenting agreement or court order, those documents will usually say what kind of notice you must give before you can move with the children. If your court order is under the Divorce Act, you will have to give formal notice according to the rules in the Divorce Act. For more information, see our FAQs on Moving and the Divorce Act.

Even if you do not have a formal agreement or court order, moving with the children usually has a big impact on the children’s relationship with the other parents or guardians.

If there are concerns of family violence, talk to a lawyer or Family Court Counsellor before giving notice and moving.

Last Reviewed: March 2021

No. If the other parent does not agree with you moving with the child, then you need the court’s permission to move the child. The court will decide in the child’s best interests. The court can order that the child move or not move. The court cannot order a parent to move or not.

If you are married or divorced and have a court order under the Divorce Act, you must give notice of your move, whether you are moving within the same city or further away. For more information, see our FAQs on Moving and the Divorce Act.

Last Reviewed: March 2021

You may be accused of abducting the children if you choose to move with them without giving notice to the other parents or guardians. The other parents or guardians could apply to court for an order that you return the children. This would be costly and negatively impact the children.

A judge might also interpret your move without permission as you not acting in the best interests of the children. This could have long-lasting impacts on your parenting arrangements and responsibilities. The move might backfire and be held against you.

If there are concerns of family violence, talk to a lawyer or Family Court Counsellor before giving notice and moving.

Last Reviewed: March 2021

It depends.

If there is a court order or agreement saying your ex can move with the children without your permission, then they do not need to consult you.

If there is no court order or agreement saying this, then your ex should get your permission before moving. If you cannot come to an agreement together, you may need the court (or arbitrator) to decide.

Last Reviewed: March 2021

If you and the other parents or guardians cannot reach an agreement, you can try to resolve the dispute through mediation or collaborative processes. If you still cannot reach an agreement, then you will need to apply to court to get a judge’s permission to move. The other parents or guardians can apply to the court for an order that stops you from moving with the children or that changes the primary home of the children. You will be able to tell the judge why they should allow you to move the children. The judge will decide in the children’s best interests.

Last Reviewed: March 2021

Judges only think about what is in the best interests of the children when making decisions. In deciding about whether moving is in the children’s best interests, the court thinks about:

• parenting arrangements and the relationship between the children and each parent or guardian
• how each parent or guardian supports communication between the children and the other parents or guardians
• efforts you will take to make sure the children stay in contact with their other parents and guardians
• views of the children (depending on their age and maturity)
• reasons why you are moving
• impact on the children if they were to move to the home of the parent who is not moving. For example, if the children live most of the time with you (the parent who is moving), what is the impact on the children if the other parent becomes the primary caregiver?
• impact on the children’s lives, such as moving away from family members or adjusting to a new community, schools and activities
• any orders or agreements that say in what area the child should live

The court will NOT look at whether the person who intends to relocate would still move if the child was not allowed to move.

Last Reviewed: March 2021

Sometimes people think their child can decide where they want to live when they are 12 years old. This is sometimes called the “Myth of 12”. This is NOT true.

Children do not have legal authority to decide where they want to live until they reach the age of majority where they live. And all decisions about children must be made in their best interests, not what the child or parents want.

As children get older and mature, they can make better decisions for themselves. As this happens, parents start giving their children more and more independence and decision-making powers. In the same way, children’s views in court have more weight as they age.

For example, a 9-year-old may want to live with one parent because that parent lets them eat junk food and stay up late. The child is making a decision based on their young age and immaturity. Their decision might not be in their best interests. On the other hand, a 16-year-old might have strong views that reflect their maturity. The court may be more interested in what this child wants.

We say that children have a voice, not a choice. The child’s views are only part of the assessment of what is in their best interests. Whether the parents are working together or are asking an arbitrator or judge to decide, the child’s views can be considered but are not determinative.

Something else to consider: Sometimes empowering your child to make this decision can also empower your child to make other major decisions. This erodes the important roles of parent and child. And this can backfire on you: if your child can choose to live with you, they can also choose to not live with you when you do something they do not like.

Last Reviewed: March 2021

The court can divide any costs incurred by the person who is not relocating in exercising their parenting time between the two parents. This can include travel costs.

Last Reviewed: March 2021

If you have a parenting order, read the order to see if there are any limits on where and when you can take your child on vacation. If there are restrictions, you will need to work with the other parent to come to an agreement or get the court’s permission to travel. If you do not have an agreement or court approval, you may not be able to travel as planned.

A parent or guardian traveling with children outside of Canada without the other parents or guardians should take a consent letter. A consent letter is a document signed by the child’s parents and guardians saying the travelling parent has permission to travel with the child. The Government of Canada recommends that you have the letter witnessed by a Notary Public so that border officials will be less likely to question whether the letter is real or not.

If a guardian refuses to sign a consent letter, you can ask a judge for an order allowing you to travel with the child. The judge will ask for a copy of your travel itinerary and will decide if travel is in the best interests of the child.

If you are the parent staying home and you think the other guardian will not return the children to you, get legal help immediately. In an emergency, you can apply to the court to have the children’s passports taken away from the other guardian. You can appear in court without notice to the other side. If you are worried about an international abduction, you should contact a lawyer immediately.

Last Reviewed: March 2021