Calgary Family Lawyer Charles Fair discusses what you should know about relocating after separation or divorce if you have children. A common step to take after separation or divorce is to move away from your former partner or your partner may be intending to move away. However, if there are children involved, and depending on how far you wish to move, there are some things you need to consider first.
Charles Fair has been practicing law for nearly 30 years and founded Fair Legal because he is passionate about helping others, ensuring their rights are protected and that they are treated fairly. Fair Legal deals with Criminal, Family, and Civil Litigation matters.
Partnered with the Canadian Centre for Men and Families, Fair Legal provides monthly webinars on topics dealing with criminal or family matters.
WATCH: Relocating After Separation Or Divorce
Calgary Men's Divorce Rights Lawyer Charles Fair
Canada’s divorce and family laws are governed by federal and provincial laws. Family lawyers represent their clients in court and negotiate disputes between spouses and family members. Charles Fair has been practicing Divorce and Family Law for almost 30 years. Fair Legal handles all types of divorce, custody and family legal matters to protect your children, property and you. Contact us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our legal team.
Give me a call and I can put my years of experience in divorce and family law to work for you.
Fair Legal Webinar - Relocation after Separation or Divorce
Vanessa Farkas-Brahmakshatriya: Good evening everybody. My name is Vanessa Farkas-Brahmakshatriya and I'm a volunteer with the Canadian Center for Men and Families, Alberta. I'm very pleased to introduce Charles Fair of Fair Legal. Charles has been practicing law for nearly 30 years and founded Fair - I said 30. I realized that sounded like 3, no, 30 years - and founded Fair Legal because he is passionate about helping others, ensuring that their rights are protected, and that they're treated fairly. Fair Legal deals with criminal, family and civil litigation matters, and Charles is generously volunteering his time with CCMF Alberta to deliver monthly webinars on topics of common concern to the population that we aim to serve. That is to say men struggling due to intimate relationship breakdown and turmoil.
At CCMF Alberta, we are committed to meeting men where they're at so that they can feel heard and validated, and have conversations that matter to them. We help equip men to manage stressful situations, rebuild their lives after relationships fail, and stay connected with children. We recognize that providing mental health support for men leads to optimal parenting outcomes, a reduction in family violence, and lower rates of suicide.
This is an educational offering. Please be respectful. If you are struggling, please consider accessing some of the additional supports we offer at CCMF Alberta, like our Fueling Father's webinar series, Nexus Domestic Abuse Recovery, our men's peer support group, our mindfulness based stress program, or individual counseling. You can learn more on our website at ccmfalberta.ca. I'm just typing that into the chat for you all.
And also, please look out for a short customer satisfaction survey in your email inbox at 8:15. We are always working to deliver the best content we can that meets you where you are at.
If you have questions during the presentation, please send them via chat to Melanie Seneviratne. She is Charles' assistant. Please don't send them directly to Charles or they won't get answered. And she will read them out loud for Charles to answer during the question and answer period. Please be advised this webinar is being recorded. And, with that, over to you, Charles.
Charles Fair: Great. Thank you very much, Vanessa. It's always a pleasure to be doing these webinars with the CCMF. I really like what you guys are doing for what is an underserved market.
And, you know, tonight's topic is one of those really difficult topics in family law because it's very difficult. I was saying just before the webinar that I would actually hate to be a judge. I'd hate to be the one having to make a really tough decision on some of these kinds of issues. And, as Vanessa said, this is an educational webinar. Please don't take what I say as legal advice that's going to fit exactly with your situation if you are in one of these kinds of situations yourself.
Every situation is different and, well, we'll get some of the things that might be applicable. Other things might just not be applicable in your case. So always a good idea to check in with a lawyer. So, just got to do that just to keep all of the legal people happy.
Without further ado, tonight's topic is on the, not moving out, the moving on or the - it's the moving away. This is - it's very difficult when a partner moves out, or maybe you're the one that moved out, or they're moving on with life - the partners are moving on. But then moving away when there's kids involved is especially difficult.
So, the basic law is Canadians have the right to choose to separate and divorce, and they have the right to relocate. But what about the children? And this is a very tough decision to be made: In which location, and with which parent, are the best interests of the children going to be met? And that's the words out of a recent judgment in this area.
So what is in the children's best interests? Well, that's gonna be the same test, or similar test, to what's going to happen in any kind of parenting decision that the court has to make. What is in the children's best interest? How are their physical, emotional, and psychological safety, security and well-being going to be looked after? And it's highly fact-specific and discretionary. That's why I said, you know, we'll try to give you some tips and some guidance here, but every case is very different.
And there are general factors that apply. And these apply in all parenting decisions that the courts are making. And they sometimes apply in relocation cases because the courts have to grapple with - they may have to first decide, well, who gets to be the primary parent? Before then deciding who gets to move with the children or whether either the primary parent can move with the children.
So these are some of the factors that the courts consider. The children's views and preferences. The history of caregiving. In other words, the history of parental involvement, each of the parents. Incidents of family violence. Children's cultural, linguistic, religious and spiritual upbringing and heritage. And each parent's willingness to support the child's relationship with the other parent. This is often talked about in the reverse as being parental alienation. This is the opposite of parental alienation, but this is what the courts focus on. The other word for this is sometimes the hostile parent issue.
And then there's the maximum contact principle. And that's one of those things that is oftentimes misunderstood as meaning that there's somehow a default. That maximum contact with each parent means equal 50/50, and that's the default. And that is, you know, whoever wants to work from that has the burden of proving why that's not in the children's best interest.
But that's actually not the case. It's, it's the maximum contact that's consistent with the best interest of the children, which seems kind of circular, but unfortunately that's the way it is. The courts don't like making it as a rule because, if you make it a rule, it just complicates the analysis.
Certainly what the courts are trying to do is make sure that both parents have as much contact as possible with the children, because that's generally in the children's best interest. But it might not be in every case. So I think the courts are doing that just so that it's not regarded as the primary principle.
Then, when it comes to relocation, the guiding factor is a case from the Supreme Court of Canada in, I think it was, 1997. Gordon and Goertz is the name of the case. And that court decision is regularly referred to in probably every case that deals with mobility or these issues, in whatever level of court that you're in.
So these are the factors that are considered on the issue of relocation. Well, what are the parents reasons for the relocation? Is it for a job? Is it for family? Is it so they can be around people where they've got more supports? Is it just to get away from the other person? And, you know, those are the reasons. Or that's one of the factors.
The second issue is the impact of the relocation on the child. Obviously, any kind of move is disruptive on the child. And the court has to try to figure out, well, what's the impact going to be? And that may be very hard to figure out. And it's hard to figure out in advance. So I was recently involved in a case, representing a Mom, and both parties agreed that she could move with the child to a city in Ontario. And, thereafter, within a couple of months, that child had a complete meltdown and they decided that it was best if the child came back to Alberta. And then they had some other complicating issues because there was a history of psychiatric conditions on both the child and the parent here in Alberta. So, a very difficult case.
So, that's one of the things that the court has to try to figure out in advance is trying to assess that. Very, very difficult to be sure that you're gonna get it right a hundred percent of the time.
Again, next point here: Parenting time and level of each parent's involvement. That's going to be similar to the other issue which, when you're trying to decide the parents custody in general, you're taking a look at the history of involvement that each parent had with their children, and how much time the children spent with each parent.
Next one is kind of a - compliance with notice requirements. It would be really odd to me, if everything else was equal and the court, you know, pinned its decision on that issue. But it's there as one of the factors that are supposed to be considered.
Another issue is the prior orders or agreements. What can happen there is that it may trigger a need to show a material change in circumstance as to why that earlier agreement should not be binding on the parties now. Especially if the parties had turned their minds to the issue and said, oh, no, neither one gets to relocate, and now somebody wants to relocate. Well, what's different? What's the material change in circumstances that allows us to open up that agreement?
Now, given that that a relocation is a pretty significant event, I'm not sure that the courts are going to find it that difficult to find that there's been a material change of circumstances, or that there will be.
Then the last point is the reasonableness of the proposed parenting plan. So this involves both parenting time and parenting responsibilities. And the issue is, so, if you're gonna take your child to Ontario, okay, so what's the plan for the other parent to have time with their child. You know, oftentimes, we'll see very generous summer vacation time. We'll see very generous Christmas and Easter time because it's not likely that other kinds of parenting time issues are going to be workable because of distance. The other issue is going to be about decision making and if somebody's proposing, you know, some kind of plan for how decisions are going to be made regarding the children, those plans have to be reasonable.
So one interesting issue is the question that must not be asked ever. And sometimes a party will volunteer the answer to the question, and the court will, kind of deal, with it, but it's a very difficult question. So here's the way Section 6.92 sub two of the Divorce Act puts it: In deciding whether to authorize a relocation of the child, the court shall not consider that if the child's relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate. So, Mom wants to relocate with the child, and she's asked, "So, if your application is unsuccessful and you're not allowed to take the child with you, would you still move?" That puts the mom in a very difficult position. If she says, yes, I'm still gonna move, it looks like she doesn't care about her child. And, therefore, she loses. If she says that she would not relocate without the child, then the court would say, well then why should we order, I'll let you to relocate with the child?
So, it is a double blind question, a catch-22, and the courts, after a number of years since that Gordon decision was initially decided, the courts were moving towards this anyways. There was a number of decisions made. Including one of an Alberta Court of Appeal Judge that said, no, no, this is a very difficult question to ask of the applicant. And so that got encoded into the Section 6.92 of the Divorce Act, and those sections of the Divorce Act came into force in the middle of 2021. So they actually haven't been around that long, but they really basically just express where the courts were going anyways.
So. Well, that's interesting. A blank screen here.
Okay. So, I just wanna point out that we're talking about relocations. We're not just talking about moving around in the city, although, there is provisions in the Divorce Act that say, and these are in 16.8 and 16.96, that you have to give notice that you're gonna be moving with the children.
You know, even if it's to a new neighborhood in the city or down the street or whatever. You have to give notice of where the new address is gonna be. And this is subject of course to any issues about violence and that sort of thing.
Now, if the move is going to have a significant impact on the child, even if it's not a full-blown relocation, then you have to give 60 days notice. That makes it more similar to a relocation, even though somebody says, well, I'm still gonna be in Calgary. What are you talking about? We're just moving to a different neighborhood. Yeah, well, if the child's life is going to be turned upside down, then we want to make sure that the person wanting to move gives 60 days notice.
16.9 of the Divorce Act is where the actual relocation provisions are. And, again, there's a 60 days notice period that you have to give notice. And that notice includes the dates, the new address, contact information of the new residence.
And, also, it includes the proposed parenting plan - that's cut off on this screen here. I'm not sure why that happened. My apologies for that.
So, you have to include in your notice what your proposed plan is for parenting time, and the exercising of parenting responsibilities, and decision making.
Then Section 16.91 of the Divorce Act sets out procedures for objecting. And you've basically got 30 days to say what your - and I see we've got issues there - what your reasons are for objecting to the to the move. That slide is not quite accurate.
Okay, so Section 16.93 talks about burdens of proof. And this can be an important issue because, if there's shared parenting, for example, then the burden of proof is on the person who wants to move. So, to say why that is in the children's best interest. So they've gotta say, they don't get to move unless they can convince the court that it is in the children's best interest.
Now, that's not an absolute rule in the sense that once they, they might say enough, and then that burden shifts over to the person objecting to say, oh, no, well, those things aren't good enough. And then they have to say why those particular reasons aren't good enough.
Then the burden of proof is different if you've got a parent that the children spend the vast majority of their time with. And, you know, we think of that as the primary custody parent. But the Divorce Act actually uses the phrase the vast majority of time.
So that parent, they give the 60 days notice and then the burden of proof is on the person objecting, the other parent, to prove why that move shouldn't happen.
And, you know, this isn't set out in the Divorce Act, but it kind of makes sense. If you have the parent who is responsible for the children the vast majority of the time, that the courts are going to respect that while that parent has the right to move, and, presumably, they understand, what's in the children's best interest. And if they didn't think that it was going to be in the children's best interest they wouldn't be moving. And so the courts will defer to that primary parent's decision making unless the objecting parent can show reasons why it's not in the children's best interest. And that's why that burden of proof shifts.
And then, in other cases, the burden of proof is kind of equal. So both parties have the burden of proof of showing why the move is in the child's best interest, or not in the child's best interest, so it's a little bit more balanced.
And I gotta say that I think the point here is that, if there's been an agreement, say, for shared parenting, but that shared parenting agreement hasn't been followed, and the vast majority of the time the children are with one parent, then, notwithstanding that previous agreement, then it's going to be that second category here, the "Vast majority of time" parent rules are gonna come into play and it's gonna be the objecting parent who has the burden of proof.
So, here's the procedures for objecting. I'm not sure why that is all duplicated there.
There we go. Okay. So I'm gonna talk about some strategies. And I'm gonna talk about strategies in two different kinds of ways. One of the things that I think is important in all of the litigation that I do, whether it is family law or any other kind of law, that the underlying relationship issues, and psychological issues, are more important than you might think. We can have litigation strategies, but if our client is not doing their part and working on the strategies that are really not legal strategies, but they are important strategies, then the litigation is going to be much more difficult. More expensive. Harder to get things done. More time consuming, et cetera.
So, I'm just gonna point out some of these strategies. These are not the only strategies that are out there, but I think that these are important ones. So the first thing is, be the best parent that you can be. Because when the court is trying to assess what's in the children's best interest, and that maximum contact principal, what they're gonna be looking for is a parent who's actually involved.
And I often say it to people like this. That, you know, we can have a legal declaration as who the primary parent is, and who the custody parent is, but really the custody parent is the parent who actually shows up and acts in the children's best interests, sacrifices their own interests, and does so without complaining about what the other parent is or is not doing. And that is truly the custody parent. You know, if you think about it, if one parent is supposed to take the children for the weekend, and they don't, what does the other parent do? What? Complain that the other parent isn't taking the children. So now you've got the kids left there with both parents saying, oh, well we don't want the children. Well, whose responsibility is it? The custody parent is the one that shows up. And fills in the gaps. That takes up the slack. Just does whatever needs to be done, regardless of what the other parent is doing.
And, secondly, it's important to focus on what is in the children's best interests. And this can be difficult. You know, at the beginning of this talk, I talked about the turmoil that comes with the break-up of the relationship. One or both parties have moved on. Now they've got new partners involved. Those partners are involved with your children. And there's a lot of emotional stuff that goes on there. And separating out what is truly in the children's best interest versus whatever fight you might be wanting to engage in with your ex is really important.
And it's not easy to sort that out. I mean, I'm not trying to pretend that it is. If you can get some help with that will make the litigation much easier, and you're more likely to get the kind of outcome that you want.
The next issue: Manage conflict flawlessly. Now, by this I mean that, when it comes to a relocation decision, let's think about the shared parenting regime where both parents have equal parenting. And, you know, the parent that wants to move away is moving away to a good job, supportive family. The parent who's staying has got a good job, supportive family. They've both been equally involved with the children. Both are supportive of each other. Both they're doing you know everything they can to support the children's wellbeing.
Now you've got a really, very close case. And where the difference is going to be is in conflict resolution stuff. Any hint of domestic violence, or any hint of out of control conflict, will tilt the balance. And even if the other stuff isn't exactly equal, the ability to manage conflict is so important because one of the considerations would be, well, if the children, and this isn't some of the cases. You know, if the children are going to stay put, and both parents have said, look, you know, that's what the courts are gonna order, I'll stay put. And the court says, well, yeah, but look, you're not gonna be able to get along anyway. So the whole shared custody thing isn't gonna work if the conflict is starting to get out of control.
And so, that's when, you know, maybe I'm being a little over the top here by saying manage conflict flawlessly, but there's lots of things that you can do that aren't dependent on what the other person does. And that's really important, to think that through. Because if the other person knows how to push your buttons and trigger you, and off you go, that's gonna come back to haunt you.
Then the last one I put here is be proactive. And that is, essentially, that, you know, the time to be the best parent you can be is now. You know, the best time was probably when the children were born. And, so, the more that you can deal with being the best parent you can be well in advance of any potential issue with relocation, the better position you're gonna be in.
The other thing is that, if you think it's gonna be an issue, and you're negotiating a separation agreement, or you're making submissions as to what kind of interim, or even final, parenting order is gonna be done now, and you think there might be something coming down the road that is, somebody's gonna want to move with the children, then be proactive and address it. Don't be afraid of it. Don't be afraid of that elephant in the room. Better to get it out early rather than later, all other things being equal, unless what you have to do is work on some of your conflict management and your parenting skills, then well, maybe are better off just letting it ride for the time being. So, it is worthwhile to think about it though and think about how you're gonna deal with that in the future.
Then here's some litigation strategy tips. The first one is kind of obvious. Comply with the notice and objection rules. If you wanna move with the children, then you give the notice. And, in fact, the more notice you can give, the better. Short notice means that you are afraid that you're not gonna get it, and so you have to rush it through. You don't want people looking at it too closely.
So, the best strategy is you're not afraid of giving notice, giving lots of notice, because your position is strong. So if you're in the party that needs to give the notice, give lots of notice unless there's some reason why you can't.
Secondly, if you have received a notice of intention to move, and you've got 30 days to get your objection done, get it done. You're not gonna get any leeway there if you don't comply with those rules. That makes it easy for the judge to make a decision. So, important to comply with those.
Now, in really hotly contested cases, I've got a second point there, is to get a Practice Note 8 Parenting Assessment. That's an assessment to provide the court with guidance as to what kind of parenting time and how parenting responsibilities should be divvied up. Those assessments are time consuming. They are expensive. And, going back to my point about being proactive, if you think that's going to be important for staving off a relocation assessment - sorry, a relocation application - then get this kind of assessment done. The earlier the better.
Next point: Work with your lawyer to focus on what the court will regard as relevant. And again, you know, I recognize, and the courts recognize, that these cases are highly emotionally charged. And there's a long history, or perhaps a long history, between the parents of fighting over all sorts of issues. It's really important to set aside the irrelevant ones. You don't win. This is not the kind of case where you wanna use what we call a shotgun approach. Where you just hope that you're gonna hit something, you know, with as wide a shot as possible. Or, you know, throw as much spaghetti on the wall to see what's gonna stick. No, it's important to focus on what the court will regard as relevant, and that's where you need to work with your lawyer to really focus on that.
Oftentimes, there are page limits in the affidavits that you can submit to the court. There's limits on the amount of exhibits that you can attach to your affidavit. There are limits on the kinds of exhibits that you can attach to your affidavit. If you go over those limits, you need to get permission of the court and you need to really show why those limits shouldn't apply in your case. And that's going to be very difficult if you've got a lot of stuff that's irrelevant in your materials.
And, lastly, preparation is key. These orders are final. So, you know, there was a case in BC where Dad was saying, well, look, this, you know, this house is in chaos. Yeah, I get it. I haven't been able to Finish the construction. You know, I gotta finish the construction. And the court said, you know, this construction's been going on for years and leaving the kids here with that is just gonna be continuing that chaos. And so mom was allowed to move with the kids. Dad appealed and, in the meantime, he finally got going on the construction stuff, and refinancing, and whatever he needed to do, but ultimately that was too late. So, you know that's preparation of matters outside the legal process, but it really demonstrates what is going on here is that you don't get a do-over if you have to appeal the order. These kinds of orders have a real final effect because, once they're made, the moving parent - the relocating parent - and the children relocate, and, you know, you might be only halfway through your divorce proceedings. There might be all sorts of stuff that's still unresolved. It might not be a final judgment. But it is a final decision on this issue. And the only remedy at that point is an appeal. And an appeal is not gonna be granted if you didn't put your - if you're trying to get evidence into the court of appeal that you could have had in the original court, then you're not gonna be successful. You're not gonna be able to get that evidence in. So this is kind of the opposite of focus only on things that are relevant. This preparation is key. You gotta get everything that's relevant. You can't miss anything because you have to make sure that it's there.
If you're gonna make some promises about how something is going to be better in the future, you have to show that a realistic plan is in place to make those changes happen if you wanna be successful.
So those are my comments. It looks like I've gone a few minutes over. If you have any questions, at Fair Legal we are your champions for justice when life gets messy. You know, we're not your hero, you're the hero of your case, but we do try to come along beside you and work with you to get resolution for your cases.
So I'll open it up for questions.
Melanie Seneviratne: Okay, great. So we don't have a lot of questions. We have just a few. But the first one is: What is the hostile parenting you mentioned near the beginning and why is it the opposite of parental alienation?
Charles Fair: I may have misspoke. It's essentially the same thing. There's been a lot of talk over the years about parental alienation syndrome. It's actually not a syndrome, it's not a treatable condition. What is the issue that the courts, and the legislation, recognized is that a parent has a responsibility to facilitate, or not get in the way of, the relationship with the other parent. Because that's just not in the children's best interest. So we often use the word hostile parent as the parent who is hostile to the other one. So that is a better way of describing it, than, parental alienation.
Melanie Seneviratne: Okay. The next question is: What is the "vast majority of time", and what is the threshold?
Charles Fair: I would say it's gotta be at least 80%. I think I saw that somewhere in a case. You know, again, it may be one of those things that the number is less important than actually, what happens on, you know, who's gonna take the child. You know, if you've got the one parent, maybe they've got 79 or 78%, but they should have only been getting 75% and, whenever there's an issue, they just pick up the slack. So would you say that's the one with the vast majority of time? You know, I'd argue it. So it's not a specific number. And that's why they word it that way, right?
Otherwise, you get other weird situations. If you put a number in there, then you get, you know, gameplaying over the numbers, you know? Oh, you have to gimme the kids so I keep this number in place. Well, you know, it's just not the way to be focusing on. You're supposed to be focusing on being a good parent. Being the best parent you can. Focusing on what's in the children's best interest, not on some number that may or may not be relevant.
Melanie Seneviratne: Okay. The next question we have is: What happens if no decision is currently made and one parent wants to stay, the other wants to move, but no judicial decision made? How do you approach dealing with the child if the parent moving is already planting the idea in the child's mind?
Charles Fair: Yeah. This is why this is a really difficult area. You know, because the parents shouldn't be doing that. Now, do you go to court over that? You know, if that's all you have, that's gonna seem pretty poor. So you know, there are some strategies I think that one can use to try to make sure that the, you know - here's the problem. You can't control what the other parent is gonna say to the children when you're not there. And, you know, we can say all we want. Well, you're not supposed to badmouth the other parent when you've got the kids. That's the other typical one. You shouldn't be badmouthing the other parent. You shouldn't be telling the children that you're gonna be moving away and so sad for the other parent, their other parent. You shouldn't be doing it. And the reason why you shouldn't is because, when you do that, you create a conflicting situation for the children. The parents who are doing that don't realize that, when they're criticizing the other parent, for example, the child is thinking, well, I'm half the other parent. What's wrong with me? You're criticizing me. The child doesn't necessarily sort out, oh yeah, well, okay, well those criticisms of Mom or Dad are valid and it's not a criticism of me. That's a pretty smart child to sort that out. Right? So that's one of the reasons why that stuff is bad.
Well, how do you control it? Well, you know, going to court and trying to get an order to somebody to stop doing it, well, you'll get that order, whether you can enforce it or not - because then you have to prove it. And then all you've done is created a bunch of litigation and hostility which might actually engender more of the hostile language to the kids.
So, there is no easy answer to this stuff. That's why I say, one of the tips is, be the best parent you can. Because the kids will see, you know, if Mom is the one who's talking to them like this, they'll say, well, I don't know Mom, you know, Dad's pretty good, when we're with Dad everything is great, right? They won't say that to Mom, but they'll be thinking it. You know, that's where you have to be the best parent.
And that's, of course, a hard process anyways. It's not like children come with a an instruction manual. How do you know what it is to be the best parent? What happens if you and the other parent have a dispute over what is the appropriate discipline approach to your children? Is it a race to the bottom? These are all very difficult questions about how do you control that? And the problem is it's very difficult to use the court process to control it.
So, that's where consulting with child psychologists, and social workers, and people who've got experience in this may be much better than trying to get advice from a lawyer on that. See? There I just deftly avoided the answering the question. Go talk to somebody else. It's very, very tough.
Melanie Seneviratne: Okay. What can you do if the other party relocates without notice or consent?
Charles Fair: It's called child abduction. And, in this case, you know, we weren't really talking about moves today, and we weren't really talking about abduction. It's a criminal offense. If it's done with the purpose of interfering with the other parent's parenting time. And what's really, really important is that you act quickly. You need to take steps. And those steps may involve both the criminal process and the civil process. Maybe not criminal, maybe only civil. Depending on where the child has been taken to. If the child has been taken out of the country, then the Hague Convention on child abduction kicks in. If the child has been taken to another province, then the Hague Convention doesn't apply. But then what you have to do is get your order here in Alberta and then go to the other province and get it enforced there. And that stuff takes time, and you cannot wait.
The longer you wait, the more you risk a new status quo being established so that when ultimately it gets in front of a judge, a judge says, well, yes, very bad that Mom or Dad, whoever it is, took the kids. Very, very bad. But the kids are now adjusted. It's been a couple of years. They're in school. They've got new friends. No, we're not going to interfere with this. Now, two years out, you know, that's a very long time. You know, months is not gonna be regarded as a long time. But you can't wait. You have to move on it.
Because, otherwise, the court will say, well, why didn't you move on it? You know? You must have agreed with it. You know? The person moved, you didn't do anything with it. You've acquiesced. And that's hard to overcome, I think.
Melanie Seneviratne: Okay. So, the next question is - you may have answered this already - but, with regards to the one parent who has wanted the mobility out of the province. The father did not, who was in Alberta. So, the mother has gone and actually works and lives out of province half the time. And there's a potential for a PNC, sorry, for PN7, for co-parenting conflict. So, the question is: How would a judge view this? Is a PN7 worthwhile?
Charles Fair: I don't know. I'd have to know more about the situation. It sounds that if Mom is moving around a lot, that is going to affect the children's sense of stability. So that's where, again, you have to - when working with a lawyer on this - you have to figure out, okay, what are the real important touch points here? The PN7 is a rehabilitative thing to get to enhance the relationship between children and one of the parents. And so I'm not sure that the - you know, the PN7 is a good thing - but I'm not sure how that would tie in with the relocation issue. And, if it did, you'd have to be very careful about timing and strategy there.
Melanie Seneviratne: Okay, so, in follow up, it's the same situation. So, how much influence is there, or effect, if there's a bigger family support network? For example, he is here and it's just him, but where she went to, she has a bigger family there. Does that play a big weight in the decisions made?
Charles Fair: It certainly has a significant impact.
It's not the only impact. It's as I said at the very beginning, whenever it comes to the court making a decision as to what is in the best children's best interests, it's highly fact-specific and highly discretionary. So if the parent has a very solid support group, in the other province or wherever they're going to, that's going to be given some weight because that's in the best interest of the child that their parent have support. An isolated parent is not as good as a parent with lots of support.
Now, I think quality is more important than quantity. There may be other kinds of supports that are more effective, non-familial supports, that may be more effective than a large number of dysfunctional family supports. So if you get that kind of situation, then you have to start digging in and figuring out, okay, well maybe this looks like it's supportive, but this is just a sham. And, you know, she doesn't really have much of a connection with her family. They all hate her anyways, and she never wants to talk to them, and she's just gonna be there. She's pretending now that everything's all rosy and the next move is gonna be even farther away and she'll be back to having no support. You know, who knows? I mean, these are the kinds of questions you'd want to dig into to try to figure this out and present it to a court. Obviously, you can't make stuff up. It has to be based in reality.
And sometimes it goes the other way. You know, the supports are here and they're not real strong in the relocating parents' destination, but say that there's a good job or whatever. But then you throw in, say, a little bit of nastiness in the conflict management. And, you know, animus towards the relocating parent. And maybe throw in a bit of domestic violence into that mix. And then the parent is gonna be able to move, even though the better supports might be here in Calgary. Or here in Alberta. That's why I say this is a very, very - you know, I can't say what the best strategy in these kinds of cases are because there's just too many moving parts. And, as said before, highly fact-specific and highly discretionary. And that's what the courts say.
And that's why it's hard to appeal, as well, because an appeal judge, or an appeal court, isn't going to second guess what the judge is seeing before them. Right?
Melanie Seneviratne: Okay. The next question is - this is with regards to abductions.
Sorry, just one sec. I lost my thing here.
Okay. They wanted to know, basically, how does one get police to act on abductions that involve family? Because often the police won't touch it criminally because it's family.
Charles Fair: Yeah, get legal advice. What that says to me is that the police aren't satisfied that the - and, again, it goes back to what I was saying before about when you - you know, work with a lawyer to make sure that the court is getting what the court regards is relevant.
Well, the same is true of the police. If your messaging to the police is unfiltered, so to speak, the police may very well say, well, you know, this is not something that we can get into. Now, that's if you want to have the police lay criminal charges. When you can still act - and one of the reasons why people want to do that is because it's cheaper than paying for a lawyer. But you go to court and you ask for a police enforcement clause, and then the police will act. So you get an order that says you get the children and the police are empowered to take the children and bring them to you. Then you show the police that order, they have to follow it because they're bound by an order of the court. So that's what your ultimate remedy is, you know, if the police aren't gonna do the criminal stuff.
And again, there's a difference of - on criminal matters, you have to prove the offense beyond a reasonable doubt. But in the civil side, on the family law courts, you only have to prove it on a balance of probabilities, which means, ah, it's more likely than not that this was an abduction. Whereas, in the criminal court, you have to say, yeah, it was an abduction. Beyond a doubt, it was an abduction for the purpose of cutting off the other parent from seeing the kids. And that can be fairly easy to defeat on the criminal side. So, you know, it's complicated. Again, it's hard to give a definitive answer.
Melanie Seneviratne: Okay. I think that's actually it for questions for today.
Charles Fair: Cool. Well, it's been a pleasure talking to my screen and answering your questions.
Vanessa Farkas-Brahmakshatriya: Yes. I am also very happy to have had so many opportunities this year, Charles, to have you come and speak to the population that we serve here at the Canadian Center for Men and Families. And, for those of you who are following our legal educational offerings, we don't have one in December, so the next one will be in January. January 26th.
I have a note here that it's about how to conduct yourself in and out of the courtroom, which I think is another very, very important topic that may be of interest to many of you or people you know.
And, so I really wanna thank everybody for coming and for asking insightful questions and making this webinar a success.
Please watch your email. You'll be getting a customer satisfaction survey so that we can make future offerings better. And, for those of you who only came in halfway through, or who would like to review this later, this webinar was recorded. And, when the recording is available for streaming, you will get a notification of that in your email as well.
So please visit our website, ccmfalberta.ca, to learn more about our variety of programs for supporting men's mental health, and parenting, and legal support. Thank you so much everybody. We hope you have a wonderful holiday season.
Melanie Seneviratne: Thank you, Vanessa.
Vanessa Farkas-Brahmakshatriya: Yes, thanks Charles and Melanie for your time, as always. So generous of you to be here with us.
Charles Fair: It's certainly been a pleasure.
Vanessa Farkas-Brahmakshatriya: Bye everybody.
Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.