Legal Test For Mobility Applications In Alberta
Mobility is the right of a parent with custody to relocate with their child/ children. This relocation can be to a new city, new province or new country and can be for a number of reasons such as a new job or to be closer to family / support systems. The parent who does not have custody will have to agree to this relation. As such, if the non-custodial party does not agree to the move, the parent who is moving will need to bring a mobility application or attend mediation / arbitration.
In order to be successful in a application there is a two step test that will apply: (1) you will need to establish that there has been a material change in circumstance to you or the Children; and, (2) that the move and the change in the parenting arrangement is in the best interests of the Children. The Court or Arbitrator will only go on to the second part of the test if a material change is established.
Best Interest of the Children
It is important to note that there is no one test applied when the Court is considering the best interests of the Children. The safety, wellness, connection to the community, relationship with each parent, relationship to siblings and their voice and other relevant factors are all factors that a Court may take into consideration. It is important to note that:
- There is no legal age in which Children (under the age of 18) can make the decision about where they live. The issue is less about age and more about maturity.
- If this proceeds through the courts, in order to have the voice put before the Court in the most neutral way, the Children could be appointed their own lawyer or an application for the Children’s Voice of the Child could be made.
How to Prepare for a Mobility Application
If you are wishing to pursue a Mobility Application, it would be very beneficial for your legal counsel to understand (a) what your concerns are with the children staying in their current situation; (b) why you believe the Children moving to a new location is in their best interest and (c) the impact on siblings if they were to be broken up. As well, it is a good idea to start making a list of the following:
- Describe parenting roles and relationship with each parent.
- Parenting time and roles: During marriage, how these changed at separation and since.
- Describe your living situation and why you think the Children living with you is better for you and for the Children:
- Views of the children;
- Describe options for parenting plan/maximizing time with the other parent; and
- Describe the concerns with the situation if the Children were to stay in their current situation.
If you are considering relocating with your children, connect with us today to learn more.