How should a court assess where a child should live after parents separate? If parents live in the same city after separation, the move of the child to a new home won’t seriously impair one parent’s ability to see their child. But what if the move is to a city or country far away?
Should parents always be allowed to move away with a child or never be allowed to do so? Given people need to move for jobs, careers, education medical needs and family support how do BC judges and Kelowna family lawyers determine when Kelowna child relocation and Kelowna child mobility or move away moves are allowed. What types of orders can a court make in such child move away cases?
A recent appeal decision shows that the courts will respect a decision of the primary residential parent to move unless bad faith is shown.
The recent Kelowna Child Relocation and Child Mobility case of McIntosh v Kaulbach allowed a mother’s appeal of a court order that required her to move from Kelowna back to Chetwynd in northern BC. The official BC Court of Appeal summary states:
Summary:
A trial judge made an order under the Divorce Act ordering a mother to relocate with the child of the marriage from Kelowna to Chetwynd where she had lived during a short marriage and where her ex-husband continued to reside. Appeal allowed. Having concluded that the child’s best interests were for the mother to have custody of the child and the father was not in a position to have custody, the judge erred in principle in ordering the mother to relocate.
Lorne MacLean, QC, our founding partner, handles the toughest child custody guardianship and parenting cases and was winning counsel in Canada’s leading child custody case of Young v. Young. In this case MacLean won 100% of the family home to his client, sole custody, a very high support award and special costs against the husband.
Kelowna Child Relocation Mobility Rules
Here are the key portions of the judgment
[18] In S.S.L. v. J.W.W., 2010 BCCA 55 at para. 24, this Court set out four possible scenarios for a court to consider when one parent wishes to move with a child. S.S.L. differs from the facts at hand because, in that case, both parties had agreed they should have joint guardianship and joint custody: the dispute was over the children’s the primary residence. Both parents had been living in the Victoria area, but the mother wished to move to London, Ontario. This Court held that the decision before it should be approached as follows:
[24] In my view, the court’s task in these joint parenting cases is to analyze the evidence in four possible scenarios, in this case, (i) primary residence with mother (London, Ontario); (ii) primary residence with father (Victoria, B.C.); (iii) shared parenting in Victoria; and (iv) shared parenting in London, but to do so knowing the court’s first task will be to determine which parent is to have primary residence. When the question of primary residence is evenly balanced and the court finds the best interests of the children require both parents to be in the same locale, then the court will need to choose between the shared parenting options offered by the parents, without presuming the current care-giving and residential arrangement is to be the preferred one. [Emphasis added.]
[19] The Court noted that, by approaching the question as to the best interest of the children by incorporating a parent’s decision to move, the framework “takes into account the court’s inability to order a parent to stay or move and the unfairness of preferring the obstinate over the more flexible”: para. 30.
[20] Returning to the case at hand, in my opinion, the judge made an order that is inconsistent with the principles articulated in both S.S.L. and Falvai. More particularly, he committed the same error in principle as the judge had made in Nunweiler.
[21] It is important to remember that the trial judge here dealt with the circumstances as they existed at the time of trial. The issue for the trial judge was first to determine, from the point of view of the child’s best interests, which parent should have custody of the daughter: Ms. McIntosh in Kelowna or Mr. Kaulbach in Chetwynd. If he had found that the daughter’s interests would be best served by a joint custody arrangement, then he would have had to decide the city in which that should take place. Moreover, he expressly rejected granting Mr. Kaulbach custody. This was due to the impracticalities of his work schedule as well as his temperament. Once he decided Ms. McIntosh should have sole custody, he erred in failing to respect Ms. McIntosh’s decision to choose to live in Kelowna or, in the words of S.S.L. his inability to order a parent to move or stay.
[22] Having made the decision that it was in the daughter’s best interests that the mother have custody and that the father would not have custody, it was not open to the judge to order the mother to relocate to Chetwynd. In my view, such an order is substantively different from orders, for example, about where a child will live which may indirectly affect the mobility rights of a parent who may have to choose whether to give up a possible move in order to remain close to a child.
[24] I note that the trial judge’s decision to order Ms. McIntosh to move was based in part on a desire for Mr. Kaulbach to live in the same community as his daughter. While ss. 16(10) and 17(9) of the Divorce Act stipulate that a child should have maximum contact with both parents, this is an important but not an absolute requirement. As the Court stated in Gordon:
[25] The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child. If the child’s needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.
[25] It is clear the trial judge found that the daughter’s interests would be best served if she continued to be in her mother’s custody. Ms. McIntosh’s decision to live in Kelowna is entitled to respect, as there is no evidence of an improper motive.
You can meet with Audra Bayer at our Kelowna office to discuss your Kelowna Child Relocation Mobility case by clicking here. We have 4 Kelowna Child Relocation and Child Mobility family law offices across BC and you can call us toll free at 1-877-602-9900.
