PARENTING PLAN AGREEMENT

Most children benefit from maximum contact with each parent.  Maximum contact with each parent is usually easier if the parents live in the same geographic area, i.e. both parents live in Calgary, Alberta.  From time to time, circumstances in the lives of adults change and parents wish to move to another city, another province or another country. The result of such a move may be that the parenting plan agreement is no longer workable. For instance, if the non-residential parent moves from Calgary to Vancouver, they may not be able to pick up the children on Wednesday evenings for supper.

MOBILITY APPLICATION

If either parent wishes to move and moving will result in a change to the parenting schedule, the parents will need to make a new parenting plan. If parents cannot reach an agreement on the new parenting plan together, one or both parents may apply to the Court to create a new parenting plan. We refer to those applications as “mobility” applications.

A mobility application is an application to either vary custody and access (under the Divorce Act) or to vary parenting or contact (under the Family Law Act).

DIVORCE ACT

Prior to making a variation Order the parent asking for the variation Order must prove that a material change in the circumstances of the children or either parent has occurred. Depending on the distance the parent wishes to move, moving may be a material change in circumstances.

Once a material change in circumstances has been found the Court will look at the best interests of the children in light of the change, the children’s needs and the ability of each parent to meet the children’s needs.  The Supreme Court of Canada created a test to determine the best interests of children in a mobility application.  The Court will look at:

  • The findings of the judge who made the previous order and evidence of the new circumstances;

  • The existing custody arrangement and relationship between the child and the custodial parent;

  • The existing access arrangement and the relationship between the child and the access parent;

  • The desirability of maximizing contact between the child and both parents;

  • The views of the child;

  • The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

  • Disruption to the child of a change in custody;

  • Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

FAMILY LAW ACT

Prior to making a variation Order the Court must be satisfied there has been a change in the needs or circumstances of the child since the last Order was granted.  Depending on the distance the parent wishes to move, moving may be a change in the circumstances of the child.

Once a change in circumstances has been found the Court must only consider the best interests of the child.  In determining a child’s the best interests the Court must:

  • ensure the greatest possible protection of the child’s physical, psychological and emotional safety,

  • consider all the child’s needs and circumstances, including the child’s psychological, physical, and emotional needs, and the child’s need for stability, taking into consideration the child’s age and stage of development,

  • consider the history of care for the child,

  • consider the child’s cultural, linguistic, religious and spiritual upbringing and heritage,

  • consider the child’s views and preferences, to the extent that it is appropriate to ascertain them,

  • consider any plans proposed for the child’s care and upbringing,

  • consider any family violence, including its impact on:

  1. the safety of the child and other family and household members,

  2. the child’s general well-being,

  3. the ability of the person who engaged in the family violence to care for and meet the needs of the child,

  4. the appropriateness of making an order that would require the guardians to co-operate on issues affecting the child,

  5. the nature, strength and stability of the relationship between the child and each parent,

  6. the ability and willingness of each parent to care for and meet the needs of the child,

  7. the ability of the parents to communicate and co-operate on issues affecting the child,

  8. taking into consideration the views of the child’s parents, the benefit to the child of developing and maintaining meaningful relationships with each parent,

  9. the ability and willingness of each parent to exercise the powers, responsibilities and entitlements of guardianship,

  10. any civil or criminal proceedings that are relevant to the safety or well-being of the child

Children are entitled to be heard on parenting issues that affect them.  The Court may order that your children be represented by a lawyer to ensure their voice is heard by both parents and the Court.  Having a voice does not mean the children have the right to choose the parenting plan or to choose whether they will move with a parent.  However, as children develop the capacity to understand their own needs and interests their views and preferences will be factored into decisions.

Please contact one of our lawyers immediately if there are any plans by you or the other parent to move.

We assist our clients in determining the best options available for their children by working to understand each client’s unique situation.  We provide our clients with a full explanation of their legal rights related to their children.  If there is a parenting dispute, we discuss with our clients the many options they have for resolution, the costs associated with each course of action and the probability of success.

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